- (1.) In this appeal by special leave the short question involved relates to an application of Section 141 of the Indian Succession Act to 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, unless he proves the will or otherwise manifests an intention to act as executor''. "Illustration: A legacy is given to A, who is named an executor. A orders the funeral according to the directions contained in the will, and 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 July, 1912, under which he gave life interests in the properties owned by him to his three daughters-in-law, Deolagan Kuer, Chapkali Kuer, and Alodhan Kuer. He laid down that, after the death of these three ladies, a half share in the properties would go to the two daughters 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 Singh took part in the cremation ceremony 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, not surprising that Shyam Narain Singh, with whom he was well pleased, should light the funeral pyre as his agnate in the absence of his sons who had predeceased him. It has also been found that Chapkali Kuer and Alodhan Kuer had applied for the probate of the will of Achhaiber Singh after the death of Shyam Narain Singh. Hence Shyam 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-in-law to manage properties, Shayam Narain Singh manifested his intention to act as an executor so as to be covered by Section 141 of the Indian Succession Act, and, therefore, to claim his legacy.
(2.) We may mention here that there was some previous litigation also between the parties. In Suit No. 144 of 1946, brought by the 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 no locus standi. On the strength of that decision, the bar of res judicata is relied upon by the Defendants-Respondents before us as it was in the Courts below. But, as this appeal can be disposed of on the first question, already mentioned by us, relating to the application of Section 141 Indian Succession Act, we need not deal with the plea of res judicata.
(3.) The suit before us was filed by the heirs of Shyam Narain Singh for a declaration of the rights of Shyam 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 not binding upon the plaintiffs. The Trial Court and then the Additional District Judge of Patna, on the first appeal of the Defendants-Respondents before us, had decreed 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 Narain 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 the 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 holding that Shyam Narain Singh had manifested an intention to act as executor.;