# DILHARSIIANKAR C. llHACllECHA v. THE CONTROLLER OF ESTATE DUTY, AHMEDABAD

- **Citation:** [1986] 1 S.C.R. 94
- **Court:** Supreme Court of India
- **Decided:** 1986-01-08
- **Bench:** V.D. Tulzapurkar, Sabyasachi Mukharji
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dilharsiiankar-c-llhacllecha-v-the-controller-of-estate-duty-ahmedabad-9368
- **Pages:** 26

## Headnote

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
A
B
c
D
E
F
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 b

## Text

_Characters 0–39,988 of 62,622. This is a partial read: ask again with offset=39988 for what follows._

A
B
c
D
E
G
94
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
A
B
c
D
E
F
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
A
B
c
D
E
F
G
96
.SUPREME COURT REPORTS
[1986] 1 S.C.R.
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, ._,-
-I
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
A
B
c
D
E
F
G
H
A
B
c
D
F
H
98
SUPREME COURT REPORTS
[1986] 1 s.c.R.
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 o~r.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.:-
A
B
c
D
E
F
"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
A
B
c
E
F
G
H
100
SUPREME COURT REPORTS
[1986] 1 s.c.R.
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:
A
B
c
D
E
F
G
H
A
B
•
c
D
E
F
G
H
102
SUPREME COURT REPORTS
(1986] 1 s.c.R.
"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 p·rovldes 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 KamlaA
B
c
D
shankar 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
A
B
c
D
E
F
G
H
104
SUPREME COURT REPORTS
[1986] 1 S.C.R,
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 appUcaUon 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 in·the 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".
H
A
106
SUPREME COURT REPORTS
[1986] 1 S.C.R.
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.
H
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 aA
"' 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 ... h~rein
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.
A
B
c
D
E
F
G
H
108
SUPREME COURT REPORTS
[19861 l s.c.R.
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
A
B
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:
A
B
c
D·
E
F
G
H
110
,.
SUPREME COURT REPORTS
[19861 i s.c.R.
"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, since·the
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 later·will 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.