# BHAGWANI KUER (DEAD)&: ORS v. TAPESWARI KUER (DEAD) & ORS

- **Citation:** [1974] 1 S.C.R. 430
- **Court:** Supreme Court of India
- **Decided:** 1973-08-20
- **Case number:** Civil Appeal No. 1743 F of 1967
- **Bench:** K. K. Mathew, M. H. Beg
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bhagwani-kuer-dead-ors-v-tapeswari-kuer-dead-ors-5990
- **Pages:** 4

## Headnote

Jndian Succession A.ct, Sec. 141 : "Mani/e31s an intention to act as executor"
-What facts c-vnstftute 1na11ifestation-Legac); ·-cOnferred on t!ie execu:or _of a
lj(i/I.
A made a will giving life interest in his properties to three· daughters·in-Jaw.
After the death of the three' ladies, half share of the property was to go to
two daughters of one of the daughters-in-law and the other half to one S,
collaterally related to A. S was appointed as one of the executors of the will.
. One of the teFms of the will was •'that on the death of n1e, executan't, the
aforesaid executors. should perform the Shradh ceremonies of the executant
according to the means and customs in the family." S performed the. cremation
ceremonies and helped the two daughters-in-law to manage properties.
There
was no evidence to show that he pitformed the Shradh as
well.
S died
before the will. was duly proved_. -The principal _question in the suit filed by,
the heirs of S was whether there was adequate manifesta,ion of an intention
to act as an executor on th~ part of S.
The two lower Courts held that the
intention to a~t as an executor was apparCni from the facts while the High
Court held that. since thCre was no evidence of Shradh being performed by
S there was no 'manifestation', as required by Sec. 141 of the Indian Succession
Act.
Dismissin~ the· appe.al.
A
B
c
D
HELD : There is
'.·~ , distinction between the cremation
ceremonies
and
shradh r:eremonies which are periodic. It is also ·Ovident that what the testator
desired his executors to do was thac they should perform his shradh ceremonies.
E
The manner in which the testatc.r has referred ·to S in his will, nlmost as a
substitute for a soil, shows that he expected S to Perform his sllradh ceremonies
as his own som, who bad pre-deceased him, ·.vould have preformed these.
There is no evidenCe whatsoever on record that S ever performed :1Dy such
ceremony. The conc1us!on reached by the High Court, therefore. is correct.
(433 CJ
CML
APPELLATE
JURISDICTION : Civil
Appeal
No.
1743
F
of 1967.
Appeal by Special Leave from th~ judgment and Decree dated
15th October, 1958 of the Patna High trourt in Appeal from Appellate
Decree No. 552 of 1953.
V. S. Desai and D. Goburdhan, for the appellants.
SIJl'joo Prasad, R. K. Jain and E.C. Agarwal, for respondents
Nos. 2 to 12.
·
The J IJ!lgment of the Court was delivered by
. BEG, J. Jn this appeal by special leave the short question involved relates to an application of Sec. 141 of tbe Indian Succession Act
t<> the facts of the case. This section reads as '.follows :
"141. If a legacy is bequeathed to a person
who
is
named an executor of the will, he shall !not'take the legacy,
G
H
BHAGWANI V. TAPESWARI (Beg /.)
431
A·
unless he proves the will or otherwise manifests an intention
to act as executor".
B .
••
"Illustration :
A legacy is given to A, who is named an executor. A
orders the funeral according to the directions contained in the
will, arici dies a few days after the testator; without having
proved the will.
A has manifested an intention to act as
executor".
The
plaintiffs-appellants before us claim as the heirs of Sham
Narain Singh who died issueless in August 1913.
One
Achhaiber
Singh. a collateral of Shyam Narain Singh, had made a will on 3rd
C' July, 1912, under which he gave life interests in the properties owned
by. him to his three daughtcrs-inclaw Deolagan Kuer, Chapkali Kuer,
and Alodhan Kuer. He laid down that, after the death o~ these three
ladies, ~ half •hare in the proPcrties would go to the two daugbters of
Alodhan Kuer, and another half to the above mentioned Shyam Narain
Singh, a grandson ·of the testator's first cousin. Achhaiber Singh died
in November, 1912. It was found by all the Courts that Shyam Narain
D · Sing took part in the cremation c·eremony of Achhaiber Singh.
Apparently, the members of the family in which Achhaiber Singh had
been adopted were not well disposed towards him. It was. therefore,
nQt surprising that Shyam Narain Singh,

## Text

430
BHAGWANI KUER (DEAD)&: ORS.
v.
TAPESWARI KUER (DEAD) & ORS.
August 20, 1973
[K. K. MATHEW AND M. H. BEG, JJ.]
Jndian Succession A.ct, Sec. 141 : "Mani/e31s an intention to act as executor"
-What facts c-vnstftute 1na11ifestation-Legac); ·-cOnferred on t!ie execu:or _of a
lj(i/I.
A made a will giving life interest in his properties to three· daughters·in-Jaw.
After the death of the three' ladies, half share of the property was to go to
two daughters of one of the daughters-in-law and the other half to one S,
collaterally related to A. S was appointed as one of the executors of the will.
. One of the teFms of the will was •'that on the death of n1e, executan't, the
aforesaid executors. should perform the Shradh ceremonies of the executant
according to the means and customs in the family." S performed the. cremation
ceremonies and helped the two daughters-in-law to manage properties.
There
was no evidence to show that he pitformed the Shradh as
well.
S died
before the will. was duly proved_. -The principal _question in the suit filed by,
the heirs of S was whether there was adequate manifesta,ion of an intention
to act as an executor on th~ part of S.
The two lower Courts held that the
intention to a~t as an executor was apparCni from the facts while the High
Court held that. since thCre was no evidence of Shradh being performed by
S there was no 'manifestation', as required by Sec. 141 of the Indian Succession
Act.
Dismissin~ the· appe.al.
A
B
c
D
HELD : There is
'.·~ , distinction between the cremation
ceremonies
and
shradh r:eremonies which are periodic. It is also ·Ovident that what the testator
desired his executors to do was thac they should perform his shradh ceremonies.
E
The manner in which the testatc.r has referred ·to S in his will, nlmost as a
substitute for a soil, shows that he expected S to Perform his sllradh ceremonies
as his own som, who bad pre-deceased him, ·.vould have preformed these.
There is no evidenCe whatsoever on record that S ever performed :1Dy such
ceremony. The conc1us!on reached by the High Court, therefore. is correct.
(433 CJ
CML
APPELLATE
JURISDICTION : Civil
Appeal
No.
1743
F
of 1967.
Appeal by Special Leave from th~ judgment and Decree dated
15th October, 1958 of the Patna High trourt in Appeal from Appellate
Decree No. 552 of 1953.
V. S. Desai and D. Goburdhan, for the appellants.
SIJl'joo Prasad, R. K. Jain and E.C. Agarwal, for respondents
Nos. 2 to 12.
·
The J IJ!lgment of the Court was delivered by
. BEG, J. Jn this appeal by special leave the short question involved relates to an application of Sec. 141 of tbe Indian Succession Act
t<> the facts of the case. This section reads as '.follows :
"141. If a legacy is bequeathed to a person
who
is
named an executor of the will, he shall !not'take the legacy,
G
H
BHAGWANI V. TAPESWARI (Beg /.)
431
A·
unless he proves the will or otherwise manifests an intention
to act as executor".
B .
••
"Illustration :
A legacy is given to A, who is named an executor. A
orders the funeral according to the directions contained in the
will, arici dies a few days after the testator; without having
proved the will.
A has manifested an intention to act as
executor".
The
plaintiffs-appellants before us claim as the heirs of Sham
Narain Singh who died issueless in August 1913.
One
Achhaiber
Singh. a collateral of Shyam Narain Singh, had made a will on 3rd
C' July, 1912, under which he gave life interests in the properties owned
by. him to his three daughtcrs-inclaw Deolagan Kuer, Chapkali Kuer,
and Alodhan Kuer. He laid down that, after the death o~ these three
ladies, ~ half •hare in the proPcrties would go to the two daugbters of
Alodhan Kuer, and another half to the above mentioned Shyam Narain
Singh, a grandson ·of the testator's first cousin. Achhaiber Singh died
in November, 1912. It was found by all the Courts that Shyam Narain
D · Sing took part in the cremation c·eremony of Achhaiber Singh.
Apparently, the members of the family in which Achhaiber Singh had
been adopted were not well disposed towards him. It was. therefore,
nQt surprising that Shyam Narain Singh, with whom he was well pleas-·
ed, shonld light the funeral pyre as his agnate in the absence of his sons
who had predeceased him. It has also been fonnd that Chapkali Kue(·
and Alodhan Kuer had applied for the probate of the will of Achhaiber.
E !
Singh after the death of Shyam Narain Singh. Hence, Shy am Narain
Singh could not possibly join them at that time. He had died before
the will could be duly proved. He was also said. to have looked after
the properties of the two ladies. The question before us is whether
by taking part in cremation ceremonies and by helping two daughters-
~law to manage properties, Shyam Narain Sii;igh manifested his intention to act as an executor so as to be covered by Sec.. 141 of the
F' Indian Succession Act, and, therefore, to claim his legacy .
. We may mention here that there was some previous litigation also
between the parties. In suit No. 144 of 1946, brought by tbe heirs
of Shyam Narain Singh, against some of the defendants in the suit
before us, the precise question before us for decision had arisen, but
the High Court had not decided it. It had dismissed the suit on the
ground that the plaintiffs had not l.ocus standi. On the strength of
that decision the bar of res-judicata is relied upon by the DefendantsRespondents before us as it was in the Courts b~low. But, as this
appeal can be disposed of on the first qu):stion, already mentioned by
us, relating to the application of section 141 Indian Succession Act.
we need not deal with the plea of res-judicata.
·
The suit before us was filed by the heirs of Shyam Narain Singh
for a declaration of the rights of Shy am Narain Singh in the property
bequeathed,.and for a declaration that the compromise decree in suit
No. 74 of 1944 was fraudulent. collusive, invalid, and noi binding upon
432
SUPREME COURT REPORTS
[ 1974 J 1 s.c.R.
the plaintiffs. The Trial Court and then the Additional District Judge
of Patna on the first ·appeal of the Defendants-Respondents before us,
had dec;eed the plaintiffs' suit.
The Additional District Judge had
held that, by taking part in the cremation ceremonies and by. helping
the two legatees daughters-in-law of the testator, Shyam Nar~ Singh
had manifested an intention to act as an executor before he died. The
Additional District Judge had also taken into account the fact that
tlte heirs of Shyam Narain Singh had taken some interest in the properties left by Achhaiber Singh by litigating for it. He thought that
this was only possible if Shyam Narain Singh had himself manifested
an interest in his rights under the will. This evidence was considered
sufficient for holdiii.g that Shy am Narain Singh had manifested an
intention to act aa executor.
The High Court of .Patna .. had allowed the second appeal of defendants on the ground that the findings of fact recorded by Courts below
were not enough to attract the application of Section 141 of the Indian
Succession Act. The conduct of the relations of Shyam Narain Singh,
in litigating for the property left by Achhaiber Singh was. as the High.
.. Court rightly pointed out, not relevant for determining the intentions
of Shyam Narain Singh. Nor was the fact that he, looked after the
proprieties of the two co-legatees, who were widows, a manifestation
pf his own intention to assert his own rights as an executor. What was
inost important was the provision in the will itself which had been
overlooked by the first two conrts.
Achhaiber Singh had laid down
in the will : "That on the death of me, the executant, the aforesaid
executors, should perform the Shradh ceremonies of me, the executant
according to the means and cnstom in the family".
The High Court
had accepted the contention that there was no evidence that Shyam
Narain Singh had performed Shradh ceremonies of Achhaiber Singh In
accordance with "the means and the custom in the family".
The only contention which could be advanced before us ou behalf
of the plaintiffs-appellants was that cremation ceremonies do not end
with actual cremation of the testator, but include other ceremonies
such as Sraddha ceremonies which come later.
In reply, we have
been referred to the meaning of the term "Sraddha" given in Sir M.
Monier-Williams' Sanskrit-English Dictionary (p. 1097) as follows:
" .... a ceremony in honour and for the benefit of dead
relatives observed with great strictness at various fixed periods
and on occasions of rejoicing as well as mourning by the
surviving relatives (these ceremonies are performed bv the
daily offering of water and on stated occasions by the offering
of Pindas or balls of rice and meal to three paternal and three
maternal forefathers, i.e. to father, grand-father, and great
grandfather, it should be borne in mind that. a Sraddha is
not a funeral ceremony ( antyeshti) but a supplement to such
a ceremony; it is an act of reverential homage to a deceased
person performed by relatives, and is moreover supposed to
supply the dead with strengthening nutriment after the peik
formance of the previous funeral ceremonies has endowed
•
D
'
•
H
A
•
c
BHAGWANI V. TAPESWARI (Beg J.)
.f33
them with ethereal bodies; indeed until those antyeshti or
'funeral rites' have been performed, and until the succeeding
first Sraddha has been celebrated the deceased relative is a
prata or restless, wandering ghost, and has no real body (only
a lingrasarira, q.v.); it is not until the first Sraddha has taken
place that he attains a position among the Pitris or Divine
Fathers in their blissful abode called Pitri-loka, and the Sro
is most desirable and efficacious when performed by a son;"
Thus, it is clear that there is a distinction between cremation ceremonies and Sraddha cereiuon!es which are periodic. It is also evident
that what the testator desired his executors to do was that they should
perform his Sraddha ceremonies.
The manner in which he refers to
Shyam Narain Singh in his will, almost as a substitute for a son, shows
that he expected Sh yam Narain Singh to perform his Sraddha ceremonies as his own sons had predeceased him, There is no evidence
·whatsoever on record that Shyam Narain Singh ever performed any
such ceremony. The conclusion reached by the High Court is, therefore, correct.
Accordingly, we dismiss this appeal with costs.
There is also a Civil Miscellaneous Petition No. 4146 of 1968
before us for an amendment of the plaint in case we order a remand
of the case. We see no reason to allow this application which is also
dismissed.
Appeal dismissed.
S.B.W.