{"id":173020,"date":"1986-01-08T00:00:00","date_gmt":"1986-01-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/dilharshankar-c-bhachecha-vs-the-controller-of-estate-duty-on-8-january-1986"},"modified":"2017-10-02T07:16:20","modified_gmt":"2017-10-02T01:46:20","slug":"dilharshankar-c-bhachecha-vs-the-controller-of-estate-duty-on-8-january-1986","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/dilharshankar-c-bhachecha-vs-the-controller-of-estate-duty-on-8-january-1986","title":{"rendered":"Dilharshankar C. Bhachecha vs The Controller Of Estate Duty, … on 8 January, 1986"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Dilharshankar C. Bhachecha vs The Controller Of Estate Duty, … on 8 January, 1986<\/div>\n
Equivalent citations: 1986 AIR 1707, \t\t 1986 SCR (1)\t 94<\/div>\n
Author: S Mukharji<\/div>\n
Bench: Mukharji, Sabyasachi (J)<\/div>\n
           PETITIONER:\nDILHARSHANKAR C. BHACHECHA\n\n\tVs.\n\nRESPONDENT:\nTHE CONTROLLER OF ESTATE DUTY, AHMEDABAD\n\nDATE OF JUDGMENT08\/01\/1986\n\nBENCH:\nMUKHARJI, SABYASACHI (J)\nBENCH:\nMUKHARJI, SABYASACHI (J)\nTULZAPURKAR, V.D.\n\nCITATION:\n 1986 AIR 1707\t\t  1986 SCR  (1)\t 94\n 1986 SCC  (1) 701\t  1986 SCALE  (1)6\n\n\nACT:\n     Estate Duty  Act, 1953  sections 2(15), 2(16), 2(19), 6\nand 29\t- Interpretation  of the words \"paid\" and \"since\" in\nsection 29  -  Joint  will  and\t mutual\t will  -  Conditions\nnecessary to  render mutual will irrevocable - The theory of\ncontemporaneous exposition  and construction  of the will in\nquestion.\n\n\n\nHEADNOTE:\n     The appellant  Dilharshankar C.  Bhachech being  one of\nthe grand-sons of the deceased Kamlashankar Gopalshankar and\na legatee  under a  joint will\tof his\tgrand parents is the\naccountable person  under the  Estate Duty  Act,  1953.\t The\ndeceased and  his wife\tMahendraba  each  possessed  certain\nproperties which  were of  their own  individual  ownership.\nThey were  also\t jointly  possessed  of\t certain  properties\nincluding a  bungalow known  as \"Dilhar\t Dwar\" - situated in\nthe Ellisbridge\t area of  Ahmedabad. On\t 24th December, 1950\nthe deceased  and his  wife had made a joint will in respect\nof the\tsaid bungalow.\tMahendraba, one of the executants of\nthe joint  will died  on 3rd  January, 1954. On the death of\nMahendraba, estate  duty on  her share of the property which\npassed on  her death  to her  husband Kamlashankar  has been\nduly paid.  Kamlashankar the  other executant  to the  joint\nwill died, thereafter on 25th October, 1964. Upon his death,\nthe appellant-cum-accountable  person-cum-sole executor\t and\ntrustee paid  estate duty  to the remaining extent of 50% on\nthe properties\tas  mentioned  in  the\tjoint  will  of\t the\ndeceased  Mahendraba   and   Kamlashankar.   The   appellant\naccountable persons  in the  returns  filed  contended;\t (i)\nsince the property in question was settled by the joint will\nin favour  of the  grandsons and since duty had been paid on\nthe death  of one  of the joint executants to the will, duty\non the\tsecond death  of the deceased was not payable on the\nwhole estate  by virtue\t of the\t provisions of section 29 of\nthe Estate Duty Act; (ii) that on a true construction of the\nwill, the  deceased was neither at the time of his death nor\nany time  during the continuance of the settlement, the full\nowner of  the share of the property of Mahendraba because he\nhad only a\n95\nlife interest therein to receive rents and profits from that\nshare, and  therefore, exemption  contemplated by section 29\nof the\tAct came  into force  and hence\t no etate  duty with\nregard to  the share  of Mahendraba  on\t the  death  of\t the\ndeceased Kamlashankar arose for the second time. The Revenue\nwas of\tthe opinion  that on  the death\t of Mahendraba,\t the\nwife, her  husband had become the sole owner of the property\nin question, as is evident from the wealth tax returns filed\nby him and therefore, exemptions under section 29 of the Act\ncannot be claimed.\n     Both the  Assistant Controller of Estate Duty Ahmedabad\nas  well  as  the  Appellate  Controller  held\tagainst\t the\naccountable person,  taking the\t view that section 29 of the\nEstate Duty  Act was  not applicable.  Full  amount  of\t the\nEstate Duty was collected from the accountable person. In an\nappeal before the Tribunal, the Tribunal on the construction\nof the\twill held  in favour  of the accountable person, for\nthe reason  that Kamlashankar  did not become the full owner\nof the share of the property of Mahendraba on her death.\n     At the  instance of  the Revenue  the Tribunal referred\nthe matter  to the  High Court of Gujarat. While refusing to\ninterpret the  word \"since\"  narrowly as  contended  by\t the\nRevenue,  the\tHigh  Court,   however,\t answered   on\t the\nconstruction of\t the will  in its favour holding that \"there\nwas no\tagreement of irrevocability and the survivor took an\nabsolute interest  in the  whole of the property and as such\nsection 29  would have\tno application\tto the\tfacts of the\ncase. Hence the appeal by certificate.\n     Allowing the appeal by certificate.\n     Allowing the appeal, the Court.\n^\n     HELD: 1  The interpretation  sought for  by the Revenue\nwas highly  artificial and against the spirit of section 29.\nLooking at  the language and the spirit of section 29 of the\nEstate Duty  Act, 1953, it was clear that the expression \"If\nthe estate  duty has already been paid --- since the date of\nthe settlement\",  occurring in the first part thereof, meant\n\"if the\t estate duty  has become  payable or  has been\tpaid\neither simultaneously with the creation of the settlement or\nat any\ttime thereafter.\" The dictionary meaning of the word\n\"since\" is wide enough. Section 29 comes into operation only\non the\tdeath of the surviving spouse, the obvious intention\nof\n96\nthe Legislature in framing the section being to avoid double\nduty. Even  if the word \"paid\" was used in wider context and\nnot in\tthe literal  sense, it\tcould not  be interpreted as\nexcluding its  literal meaning,\t namely, the  actual fact of\npayment having\talready been  made. Here,  on the facts, the\nduty had  been \"paid\" since the date of the settlement. [104\nA-E]\n     Coutts &  Co. v.  Inland Revenue  Commissioner [1962] 2\nAll E.R. 521 at 527 quoted with approval.\n     1.2 Whether  a person  in \"competent  to dispose of\" of\nthe property  and within  the meaning  of section  6 of\t the\nEstate Duty  Act, 1953,\t would naturally depend on the terms\nand conditions\tunder which  the property is either acquired\nor inherited.  The expression \"competent to dispose of\" must\nbear the  ordinary meaning in the English language. A person\nshall be  deemed to  be competent to dispose of the property\nif he  has every  power or  authority enabling\tthe donee or\nother holder  thereof to  appoint or dispose of the property\nas he thinks fit. [118 D]\n     1.3 The  question of  strict construction of the taxing\nstatute and the principle that one who claims exemption must\nstrictly come  within the  purview is  not relevant  in\t the\ninstant\t case\tbecause\t the   exemption  follows   on\t the\ninterpretation of  the will. In the instant case whether the\ndeceased Kamlashankar had the disposing power over the share\nof the\tproperty of  Mahendraba, his  wife, acquired  by him\nwould depend  not on  how he  has treated  it but  the\ttrue\neffect of  the will. There is no question of contemporaneous\nconduct because the conduct of one of the parties subsequent\nto the\tdeath of  one  of  the\texecutants  long  after\t the\nexecution of the will cannot be described as contemporaneous\nconduct. The  question of  \"contemporaneous  exposition\"  by\nconduct of  the parties\t in the\t facts of this case does not\narise. [119 E; 116 B-C]\n     2.1 A  joint will\tis a  single testamentary instrument\ncontaining the\twills of  two or  more persons\tand  jointly\nexecuted by  them, while  mutual wills are separate wills of\ntwo or more persons which are reciprocal in their provisions\nand executed  in pursuance  of contract or agreement between\ntwo or\tmore persons  to dispose  of their  property to each\nother or  to third  persons in\tparticular mode\t or  manner.\nMutual wills as distinguished from joint wills are sometimes\ndescribed as  reciprocal wills.\t In order  to render  mutual\nwill irrevocable,\n97\nboth the conditions must be concurrently satisfied: (a) that\nthe surviving  testator must have received benefits from the\ndeceased under\tthe mutual will; (b) the mutual wills should\nhave been  executed in\tpursuance of  an agreement  that the\ntestator  shall\t  not  revoke  the  mutual  wills.  Such  an\nagreement not to revoke the wills may either appear from the\nwills themselves  or may  be proved  outside the  wills, but\nthat is\t not established by the mere fact that the wills are\nin identical  terms. If\t such an  agreement is\tshown,\teach\nparty remain bound. [113 D-F; 114 A-C]\n     A different  and separate agreement must be spelled out\nnot to\trevoke the  will after\tthe  death  of\tone  of\t the\nexecutants. That agreement must be clear, though need not be\nby a  separate\twriting\t but  must  follow  as\ta  necessary\nimplication which  would tantamount to an express agreement.\n[118 H; 119 A]\n     2.2 In the instant case it is clear;\n     (a) The will in question was a mutual will; [108 B]\n     (b) Reading  the different\t clauses of the said will it\nwas manifest  that the intention was to keep the property as\nit was\tat the\ttime of\t execution of  the will\t so that the\nultimate beneficiaries\tand the\t grandsons might  enjoy\t the\nproperty with  such modifications  as the  contingencies  of\ntime and situation might require; [108 A-B]\n     (c) Before\t the death  of the  first of the executants,\nthe agreement  remained contractual  one in consideration of\nmutual promises. It could have been at that stage revoked by\nmutual agreement  or even  by unilateral breach, giving rise\nat the most to an action for damages. But after the death of\nfirst one  without revoking  his or  her own  will makes the\njoint will irrevocable by the survivor. But there must be an\nagreement that\tthe wills  would not  be revoked  after\t the\ndeath of  one of  the executants  or disposition will not be\nmade contrary  to the  will after  the death  of one  of the\nexecutants; [109 C-D, E]\n     (d) The  predominant intention of the executants at the\ntime of\t the execution,\t after the acceptance of the benefit\nof the\texecution makes the will in this case irrevocable by\nthe survivor of the executants; [119 A-B]\n     (e) In  the  facts\t and  circumstances  of\t this  case,\nbecause of the specific clause that it was intended that the\ngrandsons\n98\nwould receive  the benefit  in species\tand there  being  no\nprovision for making up the deficiency or diminution if any,\nit must follow that there was mutuality and Kamlashankar was\nnot competent  to dispose  of the  property  in\t any  manner\ncontrary to the ultimate disposition; [119 B-C]\n     (f) The fact that estate duty was paid is non sequitur;\n[119 D]\n     (g)  The\tpayment\t of   wealth-tax   by\tKamlashankar\nGopalshankar  on   the\twhole  estate  after  the  death  of\nMahendraba is no relevant; and [119 D]\n     (h) The husband Kamalshankar received the benefit under\nthe  will   after  the\t death\tof   Mahendraba.  It  became\nirrevocable by\thim after  her death with the result that he\nhad no\tdisposing power\t over the share of Mahendraba in the\nproperty. In  the premises being a \"settled property\" estate\nduty having  been paid\ton the\tdeath of one of the parties,\nthe accountable\t person\t was  entitled\tto  exemption  under\nsection 29 of the Act. [119 F-G]\n     Dufour v.\tPereira, [1769]\t 21 E.R. 332; In re: Oldham,\n1925 Ch.75;  Gray v.  Perpetual Trustee Co. Ltd. [1928] A.C.\n391 at\t399 &  400; Re Parsons, Parsons v. Attorney-General,\n[1942] 2  All E.R.  496; and Bhawani Prasad v. Smt. Surendra\nBala W\/o  Subodh Chandra  and Anr. A.I.R. 1960 Allahabad 126\ndiscussed and distinguished.\n     Kuppuswami Raja  v. Perumal Raja A.I.R. 1964 Madras 291\napproved.\n\n\n\nJUDGMENT:\n<\/pre>\n
     CIVIL APPELLATE  JURISDICTION :  Civil Appeal  No.\t 679
\n(NT) of 1974.\n<\/p>\n
     From the  Judgment and  order dated  19\/20-12-73 of the
\nGujarat High Court in Estate Duty Reference No.2 of 1972.\n<\/p>\n
     V.S. Desai,  Dilhar C.  Bhachech, Naunit  Lal,  Kailash
\nVasudev and Mrs. Vinod Arya for the Appellant.\n<\/p>\n
     S.C. Manchanda,  C.M. Lodha and Miss. A. Subhashini for
\nthe Respondent.\n<\/p>\n
     The Judgment of the Court was delivered by
\n     SABYASACHI MUKHARJI,  J. In  this appeal by certificate
\nby the High Court under article 133(1) of the Constitution
\n99<\/span>
\nagainst the  judgment and order of the High Court of Gujarat
\ndated 19\/20th  December, 1973 in Estate Duty Reference No. 2
\nof 1972,  the question\tinvolved is regarding exemption from
\nestate duty  under section  29 of  the Estate Duty Act, 1953
\n(hereinafter called  the `Act’),which contemplates exemption
\nfrom duty  in cases  where estate  duty\t has  been  paid  on
\nsettled property  on the  death of  one of  the parties to a
\nmarriage.\n<\/p>\n
     The appellant  is the  accountable\t person\t and  he  is
\nrelated\t to  the  deceased  Shri  Kamlashankar\tGopalshankar
\nBhachech as  one of  his grand\tsons.  Deceaed\tKamlashankar
\nGopalshankar died  on 25th October, 1964. The deceased had a
\nwife named  Mahendraba Kamlashankar  Bhachech. The  deceased
\nand a  his wife each possessed certain properties which were
\nof their  own individual  ownership. They  were also jointly
\npossessed of  certain properties  including a bungalow known
\nas ‘Dilhar  Dwar’ –  situated in  the  Ellisbridge  area  of
\nAhmedabad. The\tdispute in  the reference  out of which this
\nappeal arose  was with regard to estate duty leviable on 1\/2
\nshare of  the wife  of the deceased in the said bungalow and
\nthe land appertaining thereto.\n<\/p>\n
     On 24th  December, 1950,  the deceased and his wife had
\nmade a joint will in respect of the said bungalow. They also
\nmade separate  wills with regard to their individually owned
\nproperties on  the same\t date with  which this appeal is not
\nconcerned.\n<\/p>\n
     The aforesaid bungalow is situated on Plot Nos. 825 and
\nappertaining to\t its main structure there are blocks bearing
\nNos. 48\/2  to 48\/6.  In addition  to the  blocks, there is a
\ngarage, a  bath room  and two  latrines as  also  some\topen
\ncompound land  appertaining to the main structure. All these
\nproperties were\t disposed of  by the  joint will executed by
\nthe deceased and his wife. The relevant portion of the joint
\nwill is as under:-\n<\/p>\n
\t  “During our  life time  we shall  continue  to  be
\n\t  joint owners\tof the land bungalow and blocks with
\n\t  their common\tbath room  and two privies including
\n\t  the garage  bearing No.  48\/1 and shall be jointly
\n\t  entitled to  the rents and income of the said land
\n\t  and blocks  and the user and rent of the bungalow.
\n\t  After the  death of  one of us, the survivor shall
\n\t  become the owner of the said land bungalow and
\n100<\/span>
\n\t  blocks including the garage No. 48\/1 with the said
\n\t  bath room and privies and shall become entitled to
\n\t  the rents  and income\t and user  of the  said land
\n\t  bungalow and\tblocks including garage No. 48\/1 and
\n\t  the  bath   room  and\t  privies.  The\t  provisions
\n\t  hereinafter contained shall become effective after
\n\t  the death  of the  survivor of us. After the death
\n\t  of the  survivor of us, hereby devise and bequeath
\n\t  our said  furnished Bungalow including all things,
\n\t  articles,  furniture,\t  utensils,  fixtures\tetc.
\n\t  together with the portion of the land and compound
\n\t  walls delineated  on the  plan hereto\t annexed and
\n\t  coloured red and marked ‘B’ to our grandson Dilhar
\n\t  shankar  Chintanvanshankar   Bhachech.  We  hereby
\n\t  devise the  bequeath our  block Nos.\t48\/2 to 48\/6
\n\t  including garage  bearing No.\t 48\/1 with  the said
\n\t  bath room and privies together with the portion of
\n\t  the land and compound walls delineated on the plan
\n\t  hereto annexed and coloured blue and marked ‘C’ to
\n\t  our\tGrandson    Snehitshankar   Chintavanshankar
\n\t  Bhachech.  We\t  hereby  devise  and  bequeath\t the
\n\t  portion of  the open\tland and  the compound walls
\n\t  delineated on the plan hereto annexed and coloured
\n\t  green and  marked ‘A’ to our grandson Hasitshankar
\n\t  Drupad shankar Bhachech.”.<\/p><\/blockquote>\n
     Mahendraba Kamlashankar  Bhachech one of the executants
\nof the Joint Will died on 3rd January, 1954. On the death of
\nMahendraba, estate  duty on  her share of the property which
\npassed on  her death  to Kamlashankar  Gopalshankar has been
\nduly  paid.  This  is  an  admitted  position.\tKamlashankar
\nGopalshankar died,  thereafter, on  25th October, 1964. Upon
\nhis death,  the appellant  cum accountable  person cum\tsole
\nexecutor and  trustee paid  estate  duty  to  the  remaining
\nextent of  50% on  the properties  mentioned  in  the  above
\nmentioned joint\t will of  the husband and the wife. The case
\nof the\trevenue was  that on  the death\t of Mahendraba,\t the
\nwife, the  deceased Kamlashankar  Gopalshankar, the husband,
\nhad become  the sole  owner of\tthe property in question and
\nthat he\t had filed  his wealth\ttax returns accordingly. The
\ncase of\t the appellant-accountable person was that since the
\nproperty in question was settled by the joint will in favour
\nof the\tgrandsons and  since duty had been paid on the death
\nof one\tof the\tjoint executants  to the  will, duty  on the
\nsecond death  of the  deceased was  not payable on the whole
\nestate by virtue of the provisions of section 29
\n101<\/span>
\nof the\tAct.  It  was  further\tcontended  that\t on  a\ttrue
\nconstruction of\t the will,  the deceased  was neither at the
\ntime of his death nor any time during the continuance of the
\nsettlement, the\t full owner  of the share of the property of
\nMahendraba because  he had  only a  life interest therein to
\nreceive rents  and profits  from that share, and, therefore,
\nexemption contemplated\tby section  29 of  the Act came into
\nforce and  the revenue\twas not\t entitled to levy any estate
\nduty with  regard to the share of Mahendraba on the death of
\nthe  deceased,\t Kamlashankar  Gopalshankar.  The  question,
\ntherefore, that arose before the revenue authorities as well
\nas the\tHigh Court,  was, whether  the appellant  herein was
\nliable to  pay estate  duty on\t1\/2 share which the deceased
\npossessed or on the whole including the share which the wife
\nof the deceased had in the property.\n<\/p>\n
     Both the Assistant Controller of Estate Duty, Ahmedabad
\nas  well  as  the  Appellate  Controller  held\tagainst\t the
\naccountable person  and further\t held that section 29 of the
\nAct was\t not applicable.  Full amount of the estate duty was
\ncollected from\tthe accountable\t person. There was an appeal
\nbefore the Tribunal. The Tribunal on the construction of the
\nwill held  in favour of the accountable person. The Tribunal
\nheld that  the deceased\t Kamlashankar Gopalshankar  did\t not
\nbecome the  full owner\tof the\tshare  of  the\tproperty  of
\nMahendraba on her death.\n<\/p>\n
     At the  instance the revenue, the Tribunal referred the
\nfollowing question of law to the High Court:\n<\/p>\n
\t  “Whether, on the facts and in the circumstances of
\n\t  the case,  the Tribunal  was right in holding that
\n\t  the respondent  is entitled  to the  full  benefit
\n\t  conferred by section 29 and that as such no estate
\n\t  duty in  respect of  the half\t share in  the joint
\n\t  property  which   originally\tbelonged   to\tlate
\n\t  Mahendraba, the wife of the deceased is payable by
\n\t  the respondent?”<\/p><\/blockquote>\n
     The aforesaid  reference was answered by the High Court
\nin favour  of the respondent by its judgment and order dated
\n19\/20th December,  1973 and gave a certificate of fitness of
\nappeal to this Court.\n<\/p>\n
     It is  necessary in this connection to refer to section
\n29 of the Act which reads as follows:\n<\/p>\n
102<\/span><\/p>\n
\t  “Settled property  in respect\t of which  since the
\n\t  date of  the settlement  estate duty has been paid
\n\t  on the death of the deceased’s spouse.\n<\/p><\/blockquote>\n
\t  29. If  estate  duty\thas  already  been  paid  in
\n\t  respect of  any settled property since the date of
\n\t  the settlement, on the death of one of the parties
\n\t  to a\tmarriage,  the\testate\tduty  shall  not  be
\n\t  payable in  respect thereof  on the  death of\t the
\n\t  other party,\tto the\tmarriage, unless  the latter
\n\t  was at  the time  of his death, or had been at any
\n\t  time during  the continuance\tof  the\t settlement,
\n\t  competent to\tdispose of such property, and, if on
\n\t  his  death   subsequent  limitations\t under\t the
\n\t  settlement  take   effect  in\t  respect  of\tsuch
\n\t  property, was\t sui juris at the time of his death,
\n\t  or had  been\tsui  juris  at\tany  time  while  so
\n\t  competent to dispose of the property.”<\/p><\/blockquote>\n
     ‘Settled property’ has been defined in section 2(19) of
\nthe Act as follows:-\n<\/p>\n
\t  “2. In  this Act,  unless  the  context  otherwise
\n\t  requires,-\n<\/p><\/blockquote>\n
\t  x   x\t  x   x\t  x
\n\t  x   x\t  x   x\t  x
\n\t  (19)\t“settled   property”  means  property  which
\n\t  stands limited  to, or  in trust for, any persons,
\n\t  natural  or\tjuridical,  by\tway  of\t succession,
\n\t  whether the settlement took effect before or after
\n\t  the commencement  of this  Act;  and\t“settlement”
\n\t  means any  disposition, including  a dedication or
\n\t  endowment, whereby property is settled.”
\n     Section 2(15) states:\n<\/p><\/blockquote>\n
\t  “‘Property’ includes\tany  interest  in  property,
\n\t  movable or immovable, the proceeds of sale thereof
\n\t  and any  money or  investment for  the time  being
\n\t  representing the proceeds of sale and also species
\n\t  into another by any methos.”\n<\/p><\/blockquote>\n
     Section 2(16) states:\n<\/p><\/blockquote>\n
\t  “‘Property passing on the death’ includes property
\n\t  passing either immediately on the death or after
\n103<\/span>
\n\t  any interval,\t either certainly  or  contingently,
\n\t  and either  originally or  by way  of substitutive
\n\t  limitation, and  “on the  death”  includes  “at  a
\n\t  period ascertainable\tonly  by  reference  to\t the
\n\t  death.”<\/p><\/blockquote>\n
     Section 5\tprovides for  levy of the estate duty in the
\ncase of every person dying after the commencement of the Act
\nupon  the   principal  value   ascertained  in\t the  manner
\nstipulated therein. Section 6 states that the property which
\nthe deceased  was at  the time\tof his\tdeath  competent  to
\ndispose of  shall be  deemed to pass on his death. Section 6
\nis important  in this connection because in order to attract
\nthe levy  of the  estate duty, the deceased should have been
\ncompetent to  dispose of  the property.\t Therefore what\t law
\nrequires is  that the deceased whose death attracts the duty
\nmust have  had disposing power at the time of his death. One
\nof the\timportant  questions  involved\tin  this  appeal  is
\nwhether the deceased Kamlashankar Gopalshankar had disposing
\npower over  the entirety  of  the  property  which  was\t the
\nsubject matter of the will by the joint executants.\n<\/p>\n
     Two contentions  were urged  before the High Court. The
\nfirst  contention  was\ton  the\t correct  interpretation  of
\nsection 29  of the  Act and the second contention was on the
\ntrue construction  of the  joint will  made by\tthe deceased
\nKamlashankar Gopalshankar  and his  wife Mahendraba  in\t the
\nyear 1950.  On the  first point, the provision of section 29
\nof the\tAct has\t been noticed. It was submitted on behalf of
\nthe revenue  before the High Court that section 29 came into
\noperation only\twhere the  estate duty\thad  become  payable
\n“since the  date of  the settlement”.  It was contended that
\nthe expression\t“Since the  date of  the settlement” clearly
\nindicated that\tthe settlement in question should first come
\ninto  existence\t  and  duty   should  have   become  payable
\nsubsequent to  the coming  into existence of the settlement.
\nThe revenue  pointed out  that in  the instant\tcase it\t was
\ncontended by  the accountable  person that the settlement in
\nfavour of  the grandsons came into existence on the death of
\nMahendraba, then  it was not possible to accept the position
\nthat liability\tto  pay\t estate\t duty  came  into  existence
\nsubsequent to  the settlement  because any  liability to pay
\nthe estate  duty would\talso come  into existence exactly at
\nthe moment of the death of the deceased.\n<\/p>\n
     It was  pointed out  on  behalf  of  the  revenue\tthat
\n“settlement” and  “liability to\t pay estate  duty” both\t had
\ncome  into   existence\tsimultaneously\t on  the   death  of
\nMahendraba and
\n104<\/span>
\nif that\t was so,  section 29 had no application to the facts
\nof this\t case. It  was urged on behalf of the revenue before
\nthe High  Court that  the word\t“paid”\tshould\tbe  read  as
\n“payable” while\t construing section  29\t of  the  Act.\tThis
\ninterpretation which  the revenue  wanted to  place  on\t the
\nsection was  confined only  to the  first part thereof which
\nstated that  ‘the estate  duty has  already  been  paid’  in
\nrespect of settled property since the date of the settlement
\non the death of one of the parties to the marriage, then the
\nestate duty  shall not\tbe payable in respect thereof on the
\ndeath of the other party to the marriage. This argument was,
\nhowever, not  accepted by  the High  Court. The\t High  Court
\nobserved that  looking at the language and the spirit of the
\nsection, it  was clear\tthat the  expression “if  the estate
\nduty  has   already  been  paid….since  the  date  of\t the
\nsettlement” meant”  if the estate duty had become payable or
\nhas been paid either simultaneously with the creation of the
\nsettlement or  at any  time thereafter”.  So the  High Court
\nemphasised that\t the dictionary\t meaning of the word “since”
\nis wide\t and the  fact is  that section comes into operation
\nonly on\t the death  of the  surviving spouse and the obvious
\nintention of  the legislature  in framing the section was to
\navoid double duty. That intention, the court observed, would
\nbe frustrated  if the  word “since” was interpreted narrowly
\nas contended for by the revenue. Even if the word “paid” was
\nused in wider context and not in the literal sense, it could
\nnot be\tinterpreted as excluding its literal meaning, namely
\nthe actual  fact of  payment having  already been  made. The
\nHigh Court was of the view that interpretation sought for by
\nthe revenue  was highly artificial and against the spirit of
\nthe section. We are in agreement with the High Court on this
\npoint. The High Court referred to the analogous provision of
\nsection\t 5(2)  of  the\tEnglish\t Statute  and  followed\t the
\nobservations of\t Upjohn L.J.  in  Coutts  &  Co.  v.  Inland
\nRevenue Commissioner,  [1962] 2\t All E.R. 521 at 527. We are
\nalso in\t respectful agreement  with  the  said\tobservations
\nreferred to  by the  High Court and on the facts, it must be
\nheld that  the duty  had been  “paid” since  the date of the
\nsettlement. No\tsubmission to  the contrary  was made before
\nus.\n<\/p>\n
     The second\t contention was\t on the\t construction of the
\nwill. Construing  the will  in the surrounding circumstances
\nand in\tthe light of the language used the High Court was of
\nthe view that there was no agreement that the survivor shall
\nnot revoke  the will  or do anything to diminish the quantum
\nof the\tproperty going\tinto the  hands\t of  the  subsequent
\nlegatees.\n<\/p>\n
105<\/span><\/p>\n
Therefore the deceased as survivor took absolute interest in
\nthe property  and section  29  of  the\tAct  would  have  no
\napplication to\tthis case.  The\t question  was\taccordingly,
\nanswered in favour of the revenue and in the negative.\n<\/p>\n
     The construction  of the  will is\tthe main question in
\nthis appeal. Whether the accountable person is liable to pay
\nestate duty  on full  value of\tthe whole  property i.e. the
\nshare  belonging  to  Mahendraba  as  well  as\tKamlashankar
\nGopalshankar would  depend upon the construction of the will
\nin question  read in the light of section 29 of the Act. The
\nsection to  be applied\trequires payment  of estate duty, in
\nrespect of the ‘settled property’ on the death of one of the
\nparties to  the marriage.  Whether property in question here
\nwas  settled   property\t or   not  would   depend  upon\t the
\nconstruction of the will.\n<\/p>\n
     The question  that fell  for consideration\t by the High
\nCourt and  also falls  for consideration  in this  Court  is
\nwhether the  deceased Kamlashankar Gopalshankar who survived
\nhis wife,  one of  the joint  executants to  the  will,\t was
\ncompetent to dispose of the share of Mahendraba which he had
\ninherited under\t the said  will. Therefore,  the question is
\nwhat is\t the true  meaning and\teffect of  the will? Did the
\ndeceased  Kamlashankar\t Gopalshankar  have  any  ‘disposing
\npower’ over  the property which is the subject matter of the
\nwill?\n<\/p>\n
     On behalf\tof the\taccountable person, it was contended
\nthat the  Will in question was not merely a joint Will but a
\nWill which was joint as well as mutual containing reciprocal
\nagreements between the parties making the Will and therefore
\nthe deceased  Kamlashankar Gopalshankar\t had no power in his
\nlife time  to revoke  or alter\tthe disposition\t made in the
\nWill or\t to do\tanything inter\tvivos  after  the  death  of
\nMahendraba  which  would  have\tgone  against  the  ultimate
\ndisposition indicated  in the  Will. It\t was submitted\tthat
\nthere was an implicit agreement between the deceased and his
\nwife, that  on the  consideration of  each other agreeing to
\nbequeath his  or her  share in the property in favour of the
\nsurvivors each\tundertook not  to do  anything\twhich  would
\nrender the  subsequent and  ultimate bequest  in  favour  of
\ngrandsons ineffective.\tAnd if\tsuch was  the agreement,  it
\nmust follow that what the deceased received as a legatee was
\nnot full  ownership right  of disposal\tbut only  a  limited
\ninterest in  the share of the wife and this would be so even
\nwhen both  executants and the survivor were described in the
\nWill as “owner”.\n<\/p>\n
106<\/span><\/p>\n
     It was  submitted that if this construction of the Will
\nwas  accepted,\t there\tcame   into  existence\ta  resulting
\nsettlement in  favour of  the grandsons\t on the death of the
\nwife and hence the property became ‘settled property’ within
\nthe meaning  of section 2(19) of the Act. It was pointed out
\nthat  if   it  was  accepted  as  a’settled  property’,\t the
\naccountable person  was entitled  to exemption under section
\n29 of the Act because admittedly duty was once paid on it on
\nthe death  of Mahendraba  in the  year\t1954.  Reliance\t was
\nplaced before  the High\t Court on  behalf of the accountable
\nperson on  the decision\t in the\t case of  Dufour v. Pereire,
\n[1769] 21  E.R. 332,  as well  as Kuppuswami Raja v. Perumal
\nRama, A.I.R. 1964 Madras 291.\n<\/p>\n
     According to  the revenue\ton the\tother hand, the Will
\nwas joint  one pure  and simple and there was no evidence of
\nany mutuality.\tIt  was\t contended  that  there\t was  enough
\nevidence in the language of the will itself to show that the
\nsurvivor was  to acquire  full\townership  rights  over\t the
\nproperty and  was therefore  competent at  all times  on the
\nfirst death  to revoke\tthe Will  or dispose of the property
\ninter vivos.\n<\/p>\n
     The High  Court on\t an exhaustive\tconsideration of all
\nthe  relevant\tjudgments  and\t authorities  came   to\t the
\nconclusion that there was no evidence to prove any agreement
\nnot to\trevoke the  Will after\tthe  death  of\tone  of\t the
\nexecutants. The High Court was of the view that there was no
\nexternal evidence  and so  far as  the internal evidence was
\nconcerned, it  appeared to  the High  Court that each of the
\nexecutants might  have thought\tthat it\t was quite  safe  to
\ntrust the  other and  to believe that having regard to their
\nages and their affection for the grand children who were the
\nultimate beneficiaries,\t nothing was  likely to occur in the
\nnear future  which would substantially diminish the property
\ntaken by  the survivor\twho can be trusted to give effect to
\nthe wishes of the deceased. Therefore, according to the High
\nCourt, there  was no  agreement of  irrevocability  and\t the
\nsurvivor took  an absolute  interest in\t the  whole  of\t the
\nproperty and as such section 29 would have no application to
\nthe facts of this case. In that view of the matter, the High
\nCourt answered the question in the negative and in favour of
\nthe revenue.\n<\/p>\n
     It is  the correctness  of that decision which is under
\nchallenge  in\tthis  appeal.\tThe  sole  question  in\t the
\nbackground of the provisions of the relevant sections namely
\nsection 29  read with other sections that have been referred
\nto herein-\n<\/p>\n
107<\/span><\/p>\n
before, is,  whether it\t was merely a joint Will or it was a
\njoint and  mutual Will or in other words there was agreement
\nimplied between\t the parties  namely the  executants of\t the
\nWill not  to revoke  the Will  after the death of one of the
\nexecutants. It\tis, therefore,\tappropriate to\trefer to the
\nrelevant provisions  of\t the  Will.  The  Will\twas  jointly
\nexecuted by Kamlashankar Gopalshankar and Mahendraba on 24th
\nDecember,  1950\t and  described\t as  “last  joint  Will\t and
\ntestament”.  They   appointed  the  accountable\t person\t the
\napppellant herein,  as ‘our  Executor’. The  Will thereafter
\ngoes on to say:\n<\/p>\n
\t  “We are  that joint  owners of a Bungalow known as
\n\t  ‘Dilhar Dwar’\t situate  at  Ellis  Bridge,  Pritam
\n\t  Nagar bearing\t Plot No. 825, Bungalow No. 48\/A. In
\n\t  addition to  the main\t bungalow there\t are certain
\n\t  other blocks\tbearing Nos.  48\/2 to  48\/6 and\t one
\n\t  garage bearing  No. 48\/1  which is below Block No.
\n\t  48\/2 and  a common  bath room\t and two privies for
\n\t  blocks  No.\t48\/2  to   48\/6.  We  have  been  in
\n\t  possession of\t the  land,  the  bungalow  and\t the
\n\t  blocks for  many years  past.\t We  are  in  actual
\n\t  occupation of\t the main bungalow. The other blocks
\n\t  except the  garage bearing  No. 48\/1 and Block No.
\n\t  48\/5 are rented to tenants. The garage bearing No.
\n\t  48\/1 is  for the  present allowed by us to be used
\n\t  by our permission and leave and licence by our son
\n\t  Chintvanshankar  Kamlashankar\t  Bhachech   without
\n\t  payment of any sum.”\n<\/p><\/blockquote>\n
\t  Then the  will goes  on to  make  the\t bequest  in
\n\t  favour of  the three\tgrandsons in  terms set\t our
\n\t  hereinbefore.<\/p><\/blockquote>\n
     The will  thereafter goes\ton to  provide in detail for
\nthe contingencies  that might happen in case where either by
\nthe rules  of the Town Planning Scheme or the Municipal Laws
\nthe portions  of the  property need and require alterations.
\nThe will  further stipulates  in detail about the payment of
\nthe house  taxes in  respect of the properties coming to the
\nshares of  each of  their grandsons,  and even in respect of
\nthe areas  built by  them. The\twill further stipulates that
\nfor the\t purpose of  partitioning the  land as demarcated on
\nthe plan there to annexed and referred to above if there was
\nany obstruction\t on the\t land going  to the share of each of
\ntheir  grandsons   which  encroached  upon  the\t portion  or
\nportions coming\t to the share of other grandson or grandsons
\nthe same  should be  removed by\t the person or persons whose
\nencroachment or obstruction, it may be.\n<\/p>\n
108<\/span><\/p>\n
     Reading the different clauses of the said joint will it
\nwas manifest that the intention was to keep the property, as
\nit was\tat the\ttime of\t execution of  the will\t so that the
\nultimate beneficiaries\tand  the  grandsons  may  enjoy\t the
\nproperty  in   full   with   such   modifications   as\t the
\ncontingencies of time and situation might require.\n<\/p>\n
     In this  background it is necessary to find out whether
\nthe Will  in question  was a  joint will only or a joint and
\nmutual Will.\n<\/p>\n
     Theobald on  ‘Wills’, Twelfth Edition, pages 28 & 29 at
\nparas 79 & 80 describes the difference thus:\n<\/p>\n
\t  “Joint wills.\t Persons may make joint wills, which
\n\t  are, however,\t revocable at  any time by either of
\n\t  them or  by the  survivor. A\tjoint will is looked
\n\t  upon as  the will  of each  testator, and  may  be
\n\t  proved on  the death of one. But the survivor will
\n\t  be treated  in equity\t as a  trustee of  the joint
\n\t  property if  there is a contract not to revoke the
\n\t  will; but  the mere  fact of\tthe execution  of  a
\n\t  joint\t will  is  not\tsufficient  to\testablish  a
\n\t  contract not\tto revoke.  So a legacy to a legatee
\n\t  who survived\tthe first  testator, but predeceased
\n\t  the second,  did not\tlapse. Where a joint will is
\n\t  followed by  a separate  will which is conditional
\n\t  on a\tcondition that\tfails, the joint will is not
\n\t  revoked even\tthough the  subsequent separate will
\n\t  contains a revocation clause.\n<\/p><\/blockquote>\n
\t  Mutual wills.\t The term  “mutual wills” is used to
\n\t  describe  separate  documents\t of  a\ttestamentary
\n\t  character made  as  the  result  of  an  agreement
\n\t  between  the\t parties   to\tcreate\t irrevocable
\n\t  interests    in     favour\tof     ascertainable
\n\t  beneficiaries. The  revocable nature\tof the wills
\n\t  under which  the interests  are created  is  fully
\n\t  recognised by the Court of Probate; but in certain
\n\t  circumstances the Court of Equity will protect and
\n\t  enforce the  interests created  by  the  agreement
\n\t  despite the  revocation of  the will\tby one party
\n\t  after\t the  death  of\t the  other  without  having
\n\t  revoked his will.\n<\/p><\/blockquote>\n
\t  The  Court   of  Equity   will  not\tprotect\t the
\n\t  beneficiary under mutual wills merely because they
\n\t  have been  made in  almost identical\tterms. There
\n\t  must be
\n109<\/span>
\n\t  evidence of an agreement to create interests under
\n\t  the  mutual\twills  which   are  intended  to  be
\n\t  irrevocable after  the death\tof the first to die.
\n\t  Where there  is no such evidence the fact that the
\n\t  survivor takes  an absolute  interest is  a factor
\n\t  against the  implication of such agreement. Where,
\n\t  however, the\tevidence is  clear, as, for example,
\n\t  where it  is contained  in recitals  in the  wills
\n\t  themselves, the  fact that  each testator gave the
\n\t  other an  absolute interest  with a substitutional
\n\t  gift in  the event of the other’s prior death does
\n\t  not prevent the Court of Equity from affording its
\n\t  protection to\t the beneficiary  under\t the  mutual
\n\t  wills. The  agreement must  also  be\tsufficiently
\n\t  precise to be enforced by the Court.\n<\/p><\/blockquote>\n
\t  Before  the\tdeath  of  the\tfirst  to  die,\t the
\n\t  agreement   is   a   contractual   one   made\t  in
\n\t  consideration\t of   mutual   promises.   It\tcan,
\n\t  therefore, at\t this stage  be\t revoked  by  mutual
\n\t  agreement and\t even by  unilateral breach,  giving
\n\t  rise to  an action  for damages at least where the
\n\t  revoking party  gives such  notice to the other as
\n\t  may enable  him to  alter his\t will also.  But  on
\n\t  general  principles\tonly  the   parties  to\t the
\n\t  agreement  can  sue  for  damages  for  unilateral
\n\t  breach.”\n<\/p><\/blockquote>\n
     Earl Jowitt  in the Dictionary of English Law, 1st Edn.\n<\/p><\/blockquote>\n
Second\tImpression   1965  at  page  1283,  referes  to\t the
\ndefinition of  ‘owner’ under  Public  Health  1936  and\t the
\nFactories Act, 1937 as a person for the time being receiving
\nthe rack-rent  of the  premises in connection with which the
\nword is\t used, whether\ton his\town account  or as  agent or
\ntrustee.  Jowitt   also\t defines  ‘ownership’  as  the\tmost
\nextensive right\t allowed by law to a person, of dealing with
\na thing\t to the\t exclusion of  all other  persons, or of all
\nexcept one  or more  specified persons.\t It is\ttherefore  a
\nright in rem.\n<\/p>\n
     Stroud’s Judicial\tDictionary 4th\tEdn. Vol.3 page 1907
\ndeals  with  the  concept  of  ‘owner’\tand  ‘ownership’  in
\ndifferent statutes of England.\n<\/p>\n
     Halsbury’s Laws  of England, 4th Edn., Vol. 50 at pages
\n95 &  96, paras\t 207 &\t208 deals  more or  less in the same
\nmanner about  joint will  and mutual  will. But at page 108,
\npara 221 it states the law thus:\n<\/p>\n
110<\/span><\/p>\n
\t  “221. Restrictions  by taking\t a benefit  under  a
\n\t  mutual will. Mutual wills may be made, either by a
\n\t  joint will  or by  separate wills, in pursuance of
\n\t  an agreement that they are not to be revoked. Such
\n\t  an agreement\tmay appear from the wills, or may be
\n\t  proved  outside   the\t wills,\t  but  it   is\t not
\n\t  established by the mere fact that the wills are in
\n\t  identical terms.  If no  such agreement  is shown,
\n\t  each party  remains free  to revoke  his will,  if
\n\t  there are  separate wills,  or to revoke the joint
\n\t  will, so  far as  it disposes of his property, and
\n\t  the fact  that one party has died without revoking
\n\t  the disposition  of his  property does not prevent
\n\t  the survivor\tfrom revoking  the disposition which
\n\t  he has  made notwithstanding\tthat he has received
\n\t  benefits out\tof the estate of the deceased party.
\n\t  Even when there is such an agreement and one party
\n\t  has died  after departing  from it  by revoking or
\n\t  altering the\twill, the  survivor having notice of
\n\t  the breach cannot claim to have the later will set
\n\t  aside, since\tthe notice  gives him  the chance of
\n\t  altering the will as regards his own property; and
\n\t  the  death   of  the\t deceased  party  is  itself
\n\t  sufficient notice  for this  purpose. It, however,
\n\t  the deceased\thas stood  by the  agreement and not
\n\t  revoked or altered his will, the survivor is bound
\n\t  by it,  and although\tprobate will be granted of a
\n\t  later will made by him in breach of the agreement,
\n\t  since a  court of  probate is\t only concerned with
\n\t  the last will, the personal representatives of the
\n\t  survivor nevertheless\t hold his estate in trust to
\n\t  give effect to the provisions of the joint will or
\n\t  mutual wills.”<\/p><\/blockquote>\n
     Jarman on\tWills in  8th Edn.  at page  42\t states\t the
\nposition of mutual wills thus:\n<\/p>\n
\t  “The\tfact   that  a\t husband   and\t wife\thave
\n\t  simultaneously made  mutual wills,  giving each to
\n\t  the other  a life interest with similar provisions
\n\t  in remainder,\t is not\t in itself  evidence  of  an
\n\t  agreement not\t to revoke the wills; in the absence
\n\t  of a definite agreement to that effect there is no
\n\t  implied trust\t precluding the\t wife from  making a
\n\t  fresh will inconsistent with her former will, even
\n\t  though her  husband has died and she has taken the
\n\t  benefits conferred by his will. Although by the
\n111<\/span>
\n\t  mutual wills the wife expressly has refrained from
\n\t  exercising  a\t power\tof  appointment,  which\t her
\n\t  husband had  only in default of her exercising it,
\n\t  and he  has appointed,  the wife can both take the
\n\t  benefit of  her husband’s  will and  exercise\t her
\n\t  power of  appointment, unless\t the language of his
\n\t  will either puts her to her election, or place her
\n\t  in the  position of  seeking at  the same  time to
\n\t  approbate and reprobate its provisions.<\/p><\/blockquote>\n
     The joint\texecutants  have  been\tdescribed  as  joint
\nowners. Again  the said clause goes on to use the expression
\n‘during our  life time\twe shall  continue to  be the  joint
\nowners’ ‘and  shall be\tjointly entitled  to the  rents\t and
\nincome of  the said land and blocks and the user and rent of
\nthe bungalow.  The Will\t goes on to say that after the death
\nof one\tof them\t ‘survivor shall  become the  “owner” of the
\nsaid land  bungalow and blocks including the garage with the
\nsaid bath  room and privies and shall become entitled to the
\nrents and  income and  user of\tthe said  land bungalow\t and
\nblock’s. The  provisions contained  in the  said  will\twere
\nstipulated to  be effective  after the death of the survivor
\nof them. After the death of the survivor the will went on to
\nuse the\t expression “we\t hereby devise and bequeath our said
\nfurnished  bungalow…..”   Then  the\twill  made  detailed
\nprovisions for\tthe enjoyment  of the  property in  specific
\nspecies.\n<\/p>\n
     In re  Oldham, 1925  Ch. 75,  the husband\tand wife had
\nmade mutual  wills in  the same\t form  in  pursuance  of  an
\nagreement so  as to  make them\tbut there was no evidence of
\nany further  agreement in  the matter.\tEach gave his or her
\nproperty to  the other\tabsolutely with the same alternative
\nprovisions in  case of\tlapse. The  wife having survived and
\naccepted  her  husband’s  property  under  the\tmutual\twill
\nsubsequently married  again, and  made a fresh will ignoring
\nthe alternative\t provisions of\ther  own  mutual  will.\t The
\nplaintiff in  that case contended that from the agreement to
\nmake mutual  wills in  the form in which they were made, the
\nsurvivor who  had accepted  the\t benefit  under\t the  mutual
\nagreements became  thereby  subject  to\t alternative  trusts
\nmentioned in the mutual wills. Reliance was placed on Dufour
\nv. Pereira  (supra). Reference\twas made to the observations
\nof Astbury  J. in that where the learned judge observed that
\nin order  to enforce  the trust, the judge must be satisfied
\nthat there was a term irrevocable and in such
\n112<\/span>
\ncircumstances he  was to  give effect  to the  same. But the
\nlearned judge  was unable  having read\tthe will to find any
\nmutuality in  that  form  in  the  will\t in  question.\tThis
\ndecision found\tfavour with  the Gujarat  High Court. In the
\ninstant case  before us, it has to be noted that the will in
\nquestion was  in one  document and furthermore the desire to
\ngive properties\t in species  to the  grandsons was  manifest
\nfrom the entirety of the will.\n<\/p>\n
     It would  be evident  from the said will that the joint
\nproperties  of\tthe  deceased  husband\tand  the  wife\twere
\ndelineated into\t three parts  and each\tof  the\t parts\twere
\nbequeathed to  three grandsons\tin species  i.e. in specific
\ndemarcated areas.  One other significant fact to be borne in
\nmind, in view of the contentions involved in this appeal, is
\nthe fact  that there was no provision in the will whereby if
\none of\tthe properties\tor one\tof the\tparts  of  the\tsaid
\nproperties was parted away or diminished before the death of
\nboth the  executants (this is important because the will was
\nto take\t effect on  the death of both the executants), there
\nwas no\tprovision that\tany part which got diminished during
\nthe life  time of  one\tof  the\t executants,  he  should  be
\ncompensated other-wise\tfrom any  other\t part  of  the\tsaid
\nproperties  or\tany  other  assets  of\tthe  estate  of\t the
\nexecutants which were the subject matter of the will.\n<\/p>\n
     Reliance was  placed in  Gray v.  Perpetual Trustee Co.
\nLtd.,[1928] A.C.  391 at 399 & 400. In that case it was held
\nthat the  fact that  husband and  wife\tsimultaneously\tmade
\nmutual wills giving life interest with similar provisions in
\nthe remainder was not in itself evidence to an agreement not
\nto revoke the wills.\n<\/p>\n
     The use  of the  expression ‘owner’  is really  not the
\nsolution of  the problem  before us  in this  appeal. In one
\ncontext the expression ‘owner’ has been used to indicate the
\nlimited ownership to be enjoyed by the survivor of the joint
\nexecutants and\tin another  context to the ultimate legatees
\nor the beneficiaries.\n<\/p>\n
     Clause 5  of the  will is suggestive that it was in the
\ncontemplation of  the executants  as to what would happen to
\ncertain amounts\t lying to  their credit\t at the\t time of the
\ndeath of  the survivor\tin the\tevent of  the death  of\t the
\ngrandson before the death of the survivor of the executants.
\nIt
\n113<\/span>
\nprovided that  in that\tevent the  amounts would  go to\t the
\nheirs according\t to law of the grandson named therein. These
\nproperties were\t again\tin  clause  7  described  as  ‘joint
\nproperties’.\n<\/p>\n
     It would  be material  to refer, apart from the clauses
\nwhich have  been set  out  hereinbefore,  to  certain  other
\nclauses namely clause 2 of the will, the relevant portion of
\nwhich has  been set out hereinbefore in its entirety. Clause
\n3 deals\t with the  situation when if any of the grandsons or
\nthe heirs wanted to sell his or their portion of building at
\nany time.  Clause 4  also dealt with the situation if one of
\nthe grandsons  died during  their life\ttime and  before the
\ndeath of  the survivor\twhat would happen? Clause 5 has been
\nreferred  to  hereinbefore.  Clause  6\tdeals  with  certain
\nmovable properties. Clause 7 dealt with separate properties.\n<\/p>\n
     It is  evident from  the  aforesaid  that\tproperty  in
\nspecies,  in   specific\t proportion,   was  intended  to  be
\npreserved and  enjoyed by  the ultimate legatee on the death
\nof the survivors.\n<\/p>\n
     In Kuppuswamy  Raja v.  Perumal Raja  (supra),  it\t was
\nobserved that  a joint\twill is\t by  a\tsingle\ttestamentary
\ninstrument containing  the wills  of two or more persons and
\njointly executed  by them,  while mutual wills, are separate
\nwills of  two or  more persons which are reciprocal in their
\nprovisions  and\t  executed  in\t pursuance  of\tcontract  or
\nagreement between  two or  more persons\t to dispose of their
\nproperty to each other to third person in particular mode or
\nmanner. Mutual\twills as  distinguished from joint wills are
\nsometimes described  as reciprocal  wills. In  describing  a
\nwill, the  adjective mutual  or reciprocal is used to denote
\nthe contractual\t element which\tdistinguished from  a  joint
\nwill. It  was stated  therein by  the Division\tBench of the
\nMadras High  Court that\t joint will would become irrevocable
\non the\tdeath of  one  of  the\ttestators  if  the  survivor
\nreceived  benefit  under  the  will.  The  Court  emphasised
\nreferring into\tcertain decisions of this court that a joint
\nwill would  become irrevocable\ton the\tdeath of  one of the
\ntestators if  the survivor  has received  benefit under\t the
\nmutual\twill.  There  need  not\t be  any  specific  contract
\nprohibiting evocation  when the\t agreement took\t the form of
\nnot two\t simultaneous mutual  wills but one single document.
\nIf one\tsingle document\t was executed  using the  expression
\n‘our property’, ‘our present wishes’, and ‘as will’ and such
\nsimilar expressions,  it was  strong cogent  evidence of the
\nintention that there was no power to revoke except by mutual
\nconsent.\n<\/p>\n
114<\/span><\/p>\n
     In order  to  render  mutual  will\t irrevocable,  both,
\naccording to  the said\tdecision,  the\tconditions  must  be
\nconcurrently satisfied:\n<\/p>\n
     (a)  that the  surviving testator\tmust  have  received
\nbenefits from  the deceased  under the\tmutual will; (b) the
\nmutual wills  should have  been executed  in pursuance of an
\nagreement that\tthe testators  shall not  revoke the  mutual
\nwills. Such  an agreement not to revoke the wills may either
\nappear from  the wills\tthemselves or  may be proved outside
\nthe wills.  This judgment was dissented from by the judgment
\nunder appeal.\n<\/p>\n
     Reliance was  placed on  the decision  of the Allahabad
\nHigh Court  in Bhawani\tPrasad v.  Smt.\t Surendra  Bala\t W\/o
\nSubodh Chandra\tand another,  A.I.R. 1960  Allahabad 126. In
\nthat case, by the will both the executants, husband and wife
\nwere devising  the property  of which each was the owner, in
\nthe first  instance to whoever survived, and thereafter both
\nof them\t devised the  property\t‘belonging  to\tus’  to\t the
\npetitioners. There was an assertion of absolute ownership in
\nthe house  made by  the wife,  and an assertion made by both
\nexecutants that\t the deposits  in the bank constituted money
\n‘belonging to  us  the\texecutants’.  The  items  aforesaid,
\naccording to  the will,\t were  to  remain  in  the  absolute
\npossession and enjoyment of the executants during their life
\ntime  and  thereafter  to  be  disposed\t of  in\t the  manner
\nindicated in  the will.\t The last  clause, clause (4) of the
\nwill indicated\tthat the  executants would have the right to
\namend or  cancel the  will, but\t nobody else would have that
\nright. It  was found  that the\texercise of the right of the
\npower reserved\tby clause (4) was not made dependent by this
\nclause on  the co-existence  of both  the executants. It was
\nheld on\t the construction  of reading of the will that after
\nthe death  of the husband, the wife could revoke the part of
\nthe will  by gifting  away the\thouse to  another during her
\nlife time.  The fact  that the\twife had benefitted from the
\nwill of\t the husband would not destroy her power of revoking
\nher  will   because  her   will\t was  quite  an\t independent
\ntransaction. The  deed of  gift could  not be  taken to have
\nrevoked the  will of  the husband  but only  the will of the
\nwife. The  case was really decided in terms of the facts and
\ncircumstances of that case and wordings of the will.\n<\/p>\n
     In the case of Re Parsons, Parsons v. Attorney General,
\n[1942] (2)  All E.R.  496, the testatrix gave a legacy of L-
\n10,000 to her husband absolutely, and she also gave the
\n115<\/span>
\nincome of  her residuary estate on trust for her huaband for
\nlife and  after his  death on  trust for her son absolutely.
\nThe husband  disclaimed the  legacy  by\t a  formal  deed  of
\ndisclaimer  and\t  the  legacy  fell  into  residue.  On\t the
\nhusband’s death\t the revenue authorities claimed estate duty
\nin respect  of the  legacy on  the ground  that although the
\nhusband had  disclaimed the  legacy,  he  was  competent  to
\ndispose of  it and the liability to duty was not, therefore,
\nexcluded by  the Finance  Act, 1948. It was held that during
\nthe period  between the\t death of the testatrix and the date
\nof the\tdisclaimer the husband was ‘competent to dispose’ of
\nthe legacy  within the\tmeaning of the Act. Whether a person
\nis competent  to dispose  of naturally\twould depend  on the
\nterms and  conditions under  which the\tproperty  is  either
\nacquired or  inherited. The expression ‘competent to dispose
\nof’ must  bear the ordinary meaning in the English language.
\nA person  shall be  deemed to be competent to dispose of the
\nproperty if  he has  every power  or authority\tenabling the
\ndonee or  other holder\tthereof to appoint or dispose of the
\nproperty as he thinks fit.\n<\/p>\n
     A contention was raised in this connection whether this
\nbeing an exemption provision from duty, it should be so read
\nas to lean in favour of the assessee.\n<\/p>\n
     The questions whether such a clause should be construed
\nin favour  of the  assessee or\tin favour  of the revenue in
\ncase of\t doubt or  the question\t whether  section  29  being
\nexemption clause  in respect  of payment  of duty on settled
\nproperty, the  onus is\ton the\tassessee  to  come  strictly
\nwithin the purview of that clause or the question how should
\nsuch a\tprovision be construed really do not arise. There is
\nnot much  difficulty or\t ambiguity on  the  construction  of
\nsection 29 of the Act. The question involved in this case is
\nthe construction  of the  will in  question. Was  it only  a
\njoint will  executed jointly by two of the executants or was
\nit a joint and a mutual will? In aid of the submissions that
\nan exemption  clause must be strictly construed in favour of
\nthe State  cases were  cited which  need  not  therefore  be
\nnoticed.\n<\/p>\n
     Reference was  made to Cross ‘Statutory Interpretation’
\non construction\t on the theory of contemporaneous exposition
\nreliance being placed on the conduct of the parties i.e. the
\ndeceased and  treated the  half share  of the  wife  in\t the
\nproperty in  question as  his own  and had  filed wealth tax
\nreturns on the same basis.\n<\/p>\n
116<\/span><\/p>\n
     These principles  are  also  well\tsettled.  But  these
\nprinciples will\t not strictly  be applicable  in the instant
\ncase because  this appeal is concerned with the construction
\nof the\twill in\t question and  the will\t in question must be
\nconstrued in such a manner as to find out the true intention
\nof the executants or the testator and testatrix. For that it
\nis well\t settled that will must be read as a whole. Secondly
\nthe expression must be read consistently.\n<\/p>\n
     One has  to bear in mind that we are concerned with the
\nconstruction  of  the  will  and  the  true  effect  of\t the
\nprovisions  thereof.   Whether\tthe   deceased\tKamlashankar
\nGopalshankar had  the disposing\t power over the share of the
\nproperty of  Mahendraba, his  wife, acquired  by  him  would
\ndepend not  on how  he has treated it but the true effect of
\nthe   will.    Furthermore   there   is\t  no   question\t  of
\ncontemporaneous conduct\t because the  conduct of  one of the
\nparties subsequent  to the  death of  one of  the executants
\nlong after  the execution of the will cannot be described as
\n‘contemporaneous conduct’.  We need  not, therefore,  detain
\nourselves on the question of ‘contemporaneous exposition’ by
\nconduct of the parties in the facts of this case.\n<\/p>\n
     Therefore the  will must  be construed  in\t its  proper
\nlight and  there must  be definite  agreement found from the
\ntenor of  the will  or aliunde\tthat  either  of  the  joint
\nexecutants would  not revoke  the will\tafter receiving\t the
\nbenefit under  the will. Such definite agreement need not be
\nexpress; it  can be implied. The terms of the will have been
\nset out\t exhaustively. It  was undoubtedly a joint will. The
\nproperty in  question has  been described as ‘our property’.
\nThe expression\t‘owner’ has  also been\tused in\t the  manner
\nindicated in  the sentence  ‘During our\t life time  we shall
\ncontinue to  be the  joint owners  of the  land bungalow and
\nblocks with  their common  bath room  and two privies….and
\nshall be  jointly entitled  to the  rents and  income of the
\nsaid land and blocks and the user and rent of the bungalow’.
\nThe will  goes on further to say that on the death of one of
\nthem, the  survivor shall  become the  ‘owner of user of the
\nsaid  land  bungalow  and  blocks  including  garage…..  ‘
\nTherefore it  is clear\tthat the  ownership which  the joint
\nexecutants contemplated\t was the  user during  the life time
\nand entitlement\t to the\t rents and income of the same. It is
\nthis ownership\twhich was  to pass on the death of either of
\nthem to the survivor and the will thereafter goes on to say
\n117<\/span>
\nthat ‘the  provisions  hereinafter  contained  shall  become
\neffective after\t the death  of\tthe  survivor  of  us’.\t And
\nthereafter after  the death it is provided “we hereby devise
\nand bequeath  our said\tfurnished bungalow……. ” The gift
\nof the\tproperty to  the three\tgrand children\tas owners in
\nfull sense is to take effect on the death of the survivor of
\nboth the  executants. It  is clear  that  the  property\t was
\nintended to  be kept  in  tact\tfor  the  enjoyment  of\t the
\nultimate legatees and during the life time of either of them
\nthe property  would  not  in  any  way\tbe  parted  with  or
\ndiminished. This  intention, expressed\tin the implied terms
\nin the\tbargain in  the\t will,\tin  our\t opinion,  would  be
\nfortified by  devising the  property to three grand children
\nin species  i.e. in  specific form and not providing for any
\nmoney or  compensation for  diminution of  any part  thereof
\nbefore coming  into effect  of the will in question. If that
\nis the\tposition then,\tin our\topinion, there is a definite
\nagreement not  to revoke  the will  by one of the executants
\nafter he  or she  has received the benefit under the will on
\nthe death of either of them.\n<\/p>\n
     Indubitably  in   the  instant  case  the\thusband\t has
\nreceived the  benefit under  the will  of the wife. He could
\nnot have  during his life time parted with the property i.e.
\nhe did\tnot have  the disposing power over the properties in
\nquestion after the death of the wife.\n<\/p>\n
     It\t was  emphasised  that\tthere  was  no\tevidence  of
\nmutuality. But\tthere was enough evidence in the language of
\nthe will  itself which\thave been  set out hereinbefore that
\nthe property  must remain in tact specially after receipt of
\nbenefit by  one of  the executants on the death of the other
\nuntil the  death of  both of them to be able to be succeeded
\nby the\tultimate legatees.  The dominant  intention  of\t the
\ntestators is  evidenced from the language used. This must be
\njudged in  the facts  and circumstances of each case. It was
\nnot only that on certain basis that the will was made but it
\nwas intended  to remain\t intact to  be enjoyed\tby the grand
\nchildren. The  fact that  both the executants have described
\nthemselves ‘joint  owners’ is  not by  itself conclusive  on
\nthis point  nor the use of the expression ‘that the survivor
\nshall become the owner’ is conclusive. On the other hand the
\ndetailed provisions  in species\t to be\teffective after\t the
\ndeath of  the survivor\tin different portions to be given to
\nthe different  grand sons  without any\tprovision as to what
\nwas to\thappen in  case of  the diminution  of the  property
\nwithin the life time of either of the survivor make the will
\n‘mutual wills’.\n<\/p>\n
118<\/span><\/p>\n
     In our opinion the dominant intention is clear i.e. the
\nwill may  be revoked  during  the  life\t time  of  both\t the
\nexecutants but\tafter the death of one of the executants and
\nafter  benefit\thad  been  received  by\t the  survivor,\t the
\nproperty in question must remain intact to be enjoyed by the
\ngrand children\tby the terms of the will which was to become
\neffective on the death of both of the executants.\n<\/p>\n
     We are  of the  opinion that definite intention must be
\nthere but such intention need not be expressed in a separate
\ndocument than  the will itself. If from the will in question
\nsuch a\tdefinite intention  and a  separate agreement can be
\nspelled out  then in our opinion it would be a case of joint
\nand mutual will.\n<\/p>\n
     In\t view\tof  the\t  above\t discussion,  the  following
\npropositions follows:\n<\/p>\n
     1. Whether\t estate duty was payable on the whole of the
\nproperty  or  not  would  depend  on  whether  the  deceased
\nKamlashankar Gopalshankar  had ‘disposing  power’  over\t the
\nshare of Mahendraba inherited by him on her death or not?\n<\/p>\n
     2. The  above question would depend on the construction
\nof the\tjoint will-did\tit create  any mutuality  among\t the
\nexecutants  of\t the  joint   will?   Whether\tKamlashankar
\nGopalshankar having  accepted  the  benefit  and  after\t his
\nwife’s death,  was competent  to do anything contrary to the
\nultimate bequest?  Before the  death of\t the  first  of\t the
\nexecutants,  the   agreement  remained\tcontractual  one  in
\nconsideration of mutual promises. It could have been at that
\nstage revoked  by mutual  agreement or\teven  by  unilateral
\nbreach, giving\trise at\t the most  to an action for damages.
\nBut after the death of the first one without revoking his or
\nher own\t will  makes  the  joint  will\tirrevocable  by\t the
\nsurvivor  (See\tTheobald  (supra).  But\t there\tmust  be  an
\nagreement that\tthe wills  would not  be revoked  after\t the
\ndeath of  one of  the executants  or disposition will not be
\nmade contrary  to the  will after  the death  of one  of the
\nexecutants. Such  an agreement\tmay appear  from the will or
\nmay be\tproved outside\tthe will but that is not established
\nby the\tmere fact  that the wills are in identical terms. If
\nsuch an agreement is shown, each party remain bound.\n<\/p>\n
     3. A  different and  separate agreement must be spelled
\nout not\t revoke the  will after\t the death  of\tone  of\t the
\nexecutants. That  agreement must be clear though need not by
\na
\n119<\/span>
\nseparate writing  but must follow as a necessary implication
\nwhich would tentamount to an express agreement.\n<\/p>\n
     4. The  predominant intention  of the executants at the
\ntime of\t the execution,\t after the acceptance of the benefit
\nof the\texecution makes the will in this case irrevocable by
\nthe survivor of the executants.\n<\/p>\n
     5. Judged\tby the\tprinciples indicated  above, in\t the
\nfacts and  circumstances of this case, we are of the opinion
\nbecause of the specific clause that it was intended that the
\ngrandsons would\t receive the  benefit in  species and  there
\nbeing  no   provision  for   making  up\t the  deficiency  or
\ndiminution if  any, it\tmust follow that there was mutuality
\nand Kamlashankar  Gopalshankar was  not competent to dispose
\nof the\tproperty in  any manner\t contrary  to  the  ultimate
\ndisposition.\n<\/p>\n
     6. The fact that estate duty was paid is non sequitur.\n<\/p>\n
     7.\t The   payment\tof   wealth  tax   by\tKamlashankar
\nGopalshankar  on   the\twhole  estate  after  the  death  of
\nMahendraba is not relevant.\n<\/p>\n
     8. The  question of  strict construction  of the taxing
\nstatute and the principle that one who claims exemption must
\nstrictly come  within the  purview is  not relevant  in this
\ncase because  the exemption follows on the interpretation of
\nthe will.\n<\/p>\n
     In that  view of  the matter we are of the opinion that
\nthis  was   a  mutual\twill.\tThe   husband\tKamlashankar
\nGopalshankar received  the benefit  under the will after the
\ndeath of  Mahendraba. It became irrevocable by him after her
\ndeath. Therefore he had no disposing power over the share of
\nMahendraba in the property. In the premises being a ‘settled
\nproperty’, estate  duty having been paid on the death of one
\nof the\tparties, the  accountable  person  was\tentitled  to
\nexemption under\t section 29  of the Act. In the premises the
\nHigh Court was not right in its conclusion.\n<\/p>\n
     The appeal\t is accordingly\t allowed  and  the  judgment
\nunder appeal  is set  aside and\t the question is answered in
\nthe affirmative and in favour of the accountable person. The
\naccountable person is entitled to the costs of this appeal.\n<\/p>\n
S.R.\t\t\t\t\tAppeal allowed.\n120<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Dilharshankar C. Bhachecha vs The Controller Of Estate Duty, … on 8 January, 1986 Equivalent citations: 1986 AIR 1707, 1986 SCR (1) 94 Author: S Mukharji Bench: Mukharji, Sabyasachi (J) PETITIONER: DILHARSHANKAR C. BHACHECHA Vs. RESPONDENT: THE CONTROLLER OF ESTATE DUTY, AHMEDABAD DATE OF JUDGMENT08\/01\/1986 BENCH: MUKHARJI, SABYASACHI (J) BENCH: MUKHARJI, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-173020","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nDilharshankar C. 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