It is, I think, a well-settled principle that a person who accepts a benefit under an instrument must accept it in its entirety. He cannot accept the benefit and repudiate its other provisions. Thisis a very old principle, enunciated by Lord Cairns L.C., in Codrington v Codrington [1875] LR 7 HL 854 thus:
Where a deed or will professes to make a general disposition of property for the benefit of a person named in it, such person cannot accept a benefit under the instrument without at the same time confirming to all its provisions, and renouncing every right inconsistent with them.
16. His acceptance of the benefit is a renunciation of every right inconsistent with the provisions of that instrument. This is a rule based on the well-known principle of approbation and reprobation. No one may affirm and disaffirm the same transaction, i.e., affirming it to the extent of the benefit received and disavowing it to the extent that it prejudices. In a very large number of decisions it has been held that a person cannot take under and against the same instrument.1 In Ramakottayya v. Viraraghavayya2 Coutts Trotter, CJ observed that the principle is often put in another form: a person cannot approbate and reprobate the same transaction. As the Supreme Court held in Beepathumma, the principle is:
That he who accepts a benefit under a deed or will or other instrument must adopt the whole contents of that instrument, must conform to all its provisions and renounce all rights that are inconsistent with it.
17. Faced with legacies and bequests, the Defendants have a choice. They may elect to receive those legacies and bequests, in which case they cannot assail the document under which they do so. In other words, on their acceptance of those legacies, they make an election and renounce all rights inconsistent with those legacies. On the other hand, it is, and was, always open to them to renounce the legacies and continue their challenge to the Will. But what no Defendant can do is to simultaneously accept a legacy that only accrues as such and challenge the testamentary instrument by which he or she receives it. The only exception to this is where the amount or item received would come to the recipient even on intestacy, or is less than what he or she might receive if the challenge to the will succeeds. It is only in that situation that no question of an election would arise. Where, however, the recipient takes a specific legacy and that legacy or bequest is not one that would follow on intestacy, the recipient cannot, having accepted the legacy, impugn or impeach the document under which it is made.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY & INTESTATE JURISDICTION
TESTAMENTARY SUIT NO. 90 OF 2000
IN
TESTAMENTARY PETITION NO. 317 OF 1999
Mr. Mirzban Darabshaw Surti Vs Mr. Cedric Vaz
Dated : 16th December 2014
CORAM ;G S Patel
Citation;2015(2)MHLJ 184
1. One Vivien Theresa Vaz ("Vivien") died at Mumbai on 3rd March 1988. According to the Petitioner, Mirzban Darabshaw Surti ("Mirzban"), Vivien left a Will dated 21st August 1997. Mirzban says he is the sole executor under this Will. He seeks to probate it.
2. Under the Will Mirzban propounds, Vivien bequeathed her Provident Fund and Gratuity to Mehernosh Marzban Surti ("Mehernosh") and Rumi Marzban Surti ("Rumi") equally. Her Family Pension Fund and her Co-operative Society dues were allegedly willed to Rumi and Mirzban respectively. To her nephew, one Ryan Elton Xavier, the Defendants' son, she allegedly bequeathed a sum of Rs. 2 lakhs and her share in the sale of 102, Manish Sea Croft, Sherly Mala Road, Bandra(West), Bombay 400 050 should that flat be sold after her death. Her jewellery she left to her sister-in-law, i.e., Defendant No. 2. She also allegedly made a bequest to Mirzban of the balances standing to the credit of all her bank accounts, the contents of her bank lockers, and all her investments including fixed deposits, shares, debentures, bonds, government securities and all immovable properties held singly by her or jointly with Mirzban. The remainder was also bequeathed to Mirzban and, failing him, to Mehermosh and Rumi equally.
3. The Defendants are Vivien's brother and sister-in-law, respectively. They entered a Caveat on 25th October 2000 and filed a joint Affidavit in Support on 31st October 2000. In that Affidavit, the Defendants disputed the execution of the Will. They alleged that Vivien had not executed the alleged Will voluntarily and that it was not prepared under her instructions. Vivien was, the Defendants alleged, in no physical and mental condition to make any such testamentary disposition. She was, they said, under Mirzban's control, and the Will was obtained by undue influence. According to the Defendants, Vivien died intestate.
4. On the Caveat and Affidavit in Support being filed, the petition was renumbered as Suit No. 90 of 2000.
5. On these pleadings, issues were struck on 16th September 2004. These are reproduced below, with my findings against each.
Re: Issues Nos. 1, 2 3:
6. As I see it, a finding on Issue No. 3 is determinative of the entire action. For, if the Defendants are disentitled in law from opposing the grant of probate, there is no question of their sustaining the caveat they have filed, even assuming that they have a caveatable interest. In any case, Issue No. 2 does not arise: not only on account of the finding on Issue No. 3, but also because they obtained an order on Chambers Summons No. 1024 of 1999 for impleadment and for service on them of a citation.
7. Under the purported will, Vivien bequeathed all the jewellery lying in her cupboard to her sister in law, Mrs. Maria Vaz, the 2nd Defendant. Mirzban led his own evidence, as also the evidence of an attesting witness, one Khushroo M. Amroliwalla (PW2).
8. In his evidence, Mirzban as PW1 says that Vivien died on 3rd March 1998 leaving no lineal descendants. Mirzban says he used to help Vivien with her tax returns; he retired from the Tata Group in 1995 and, while there, worked as an Executive, Taxation and was thus familiar with tax matters. Vivien was introduced to him through a common friend. She worked with Hindutan Lever Ltd. at the time. In her will dated 21st August 1997, Vivien appointed Mirzban as her executor. In Mirzban's presence she gave a copy of her will to one S.P. Mustafa, then Financial Controller of Hindustan Lever Ltd.
9. A few days after Vivien's death, on 9th March 1998, Mirzban visited Vivien's house to discuss the matter with her father, one A.T. Vaz. From all accounts, relations between Mirzban and Vivien's parents were strained. He was unwelcome in the house. It seems that on 14th March 1998, S.P. Mustafa visited Vivien's parents and read out the Will. A copy seems to have been given to them as well.
10. On 26th March 1998, Mirzban wrote to Vivien's father, A.T. Vaz, enclosing a notarized copy of Vivien's Will, and demanding that he hand over Vivien's assets. On 11th April 1998, A.T. Vaz's advocate replied, raising disputes. It seems however that on 8th April 1998 there was a meeting at which, among others, Mirzban, his son Mehernosh, Vivien's parents and the 1st Defendant, Cedric Vaz, Vivien's brother were all present; and an understanding was apparently reached at this meeting. On 18th April 1998, there was another meeting. Vivien's father is said to have reaffirmed the agreement reached ten days earlier. Stamp papers were called for and it was agreed that the next day Mirzban would break open Vivien's cupboard and hand the jewellery in that cupboard to the 2nd Defendant, Maria, Vivien's sister-in-law. Certain other matters were also agreed and these were drawn up on stamp paper. On 19th April 1998, Mirzban, in the presence of several persons, did break open the Vivien's cupboard. The jewellery in it was inventoried. That inventory is Ex.P-7 in evidence. At the foot of that inventory is an endorsement that the jewellery was handed over to Maria Vaz, the 2nd Defendant. That endorsement is in Mirzban's handwriting, but Maria has signed in acknowledgement of receipt of the jewellery. This is also part of the understanding recorded on the document on stamp paper, Ex. P-5 in evidence.
11. Even more vital is that the understanding or agreement Ex.Pª5 is counter-signed and accepted by the 1st Defendant as well. Explicitly stated in this writing is the acceptance by the 1st Defendant of the Will in question. The upshot of this is that Maria Vaz, the 2nd Defendant, accepted a legacy that came to her under the Will and could not have come to her except in that manner, i.e., it was not a legacy to which she could have succeeded on intestacy; and the 1st Defendant accepted, under his own signature, the validity of the will in question.
12. There is no effective cross-examination of the Plaintiff, Mirzban on this most vital aspect of the matter. However, Defendant No. 1, Cedric Vaz (Vivien's brother) was cross-examined on it. He agrees in his answer to Q.116 of his cross-examination that it was agreed that the flat in question at Manish Sea Croft would remain the property of Vivien's father; and then in answer to Q.118 admits that it was also agreed that the cupboard would be broken open and each item of jewellery noted and then handed over to Maria Vaz, Defendant No. 2, his own wife. He also admits signing the letter dated 19th April 1998 on stamp paper, Ex. P-5. In his answer to Q.121 he expressly admits that what is stated in that letter is correct. Later, in response to Qs.128 to 134 Cedric Vaz, Defendant No. 1, admits that the cupboard was indeed opened, an inventory made and the terms of the agreement complied with. This included handing over the jewellery to Maria Vaz and also the issuing of a cheque of Rs.2 lakhs to the Defendants' son Ryan.
13. There can be absolutely no doubt that the family accepted and acted on the agreement or understanding and that included an acceptance of the Will in question. They also accepted specific legacies under the Will.
14. Mr. Ojha, learned Counsel for the Defendants, attempts a submission that the Defendants accepted these legacies "under duress". That is incomprehensible. A person may be coerced into parting with something. It is hardly likely that he or she could be forced into accepting something, especially something munificent like jewellery or cash. This is not a submission that stands to reason. At no time have the Defendants brought back the amounts or items they received and took.
15. It is, I think, a well-settled principle that a person who accepts a benefit under an instrument must accept it in its entirety. He cannot accept the benefit and repudiate its other provisions. Thisis a very old principle, enunciated by Lord Cairns L.C., in Codrington v Codrington [1875] LR 7 HL 854 thus:
Where a deed or will professes to make a general disposition of property for the benefit of a person named in it, such person cannot accept a benefit under the instrument without at the same time confirming to all its provisions, and renouncing every right inconsistent with them.
16. His acceptance of the benefit is a renunciation of every right inconsistent with the provisions of that instrument. This is a rule based on the well-known principle of approbation and reprobation. No one may affirm and disaffirm the same transaction, i.e., affirming it to the extent of the benefit received and disavowing it to the extent that it prejudices. In a very large number of decisions it has been held that a person cannot take under and against the same instrument.1 In Ramakottayya v. Viraraghavayya2 Coutts Trotter, CJ observed that the principle is often put in another form: a person cannot approbate and reprobate the same transaction. As the Supreme Court held in Beepathumma, the principle is:
That he who accepts a benefit under a deed or will or other instrument must adopt the whole contents of that instrument, must conform to all its provisions and renounce all rights that are inconsistent with it.
17. Faced with legacies and bequests, the Defendants have a choice. They may elect to receive those legacies and bequests, in which case they cannot assail the document under which they do so. In other words, on their acceptance of those legacies, they make an election and renounce all rights inconsistent with those legacies. On the other hand, it is, and was, always open to them to renounce the legacies and continue their challenge to the Will. But what no Defendant can do is to simultaneously accept a legacy that only accrues as such and challenge the testamentary instrument by which he or she receives it. The only exception to this is where the amount or item received would come to the recipient even on intestacy, or is less than what he or she might receive if the challenge to the will succeeds. It is only in that situation that no question of an election would arise. Where, however, the recipient takes a specific legacy and that legacy or bequest is not one that would follow on intestacy, the recipient cannot, having accepted the legacy, impugn or impeach the document under which it is made.
18. The law in India follows the law in England on this, where the principle of approbate and reprobate is part of the doctrine of election. This is reflected inter alia in Sections 187 and 188 of the Indian Succession Act, 1925:
Section 187: When acceptance of benefit given by Will constitutes election to take under WillAcceptance of a benefit given by a Will constitutes an election by the legatee to take under the Will, if he had knowledge of his right to elect and of those circumstances which would influence the judgment of a reasonable man in making an election, or if he waives inquiry into the circumstances.Section 188: Circumstances in which knowledge or waiver is presumed or inferred(1) Such knowledge or waiver of inquiry shall, in the absence of evidence to the contrary, be presumed if the legatee has enjoyed for two years the benefits provided for him by the Will without doing any act to express dissent.(2) Such knowledge or waiver of inquiry may be inferred from any act of the legatee which renders it impossible to place the persons interested in the subject-matter of the bequest in the same condition as if such act had not been done.
19. A Division Bench of this Court interpreted both sections in Lyla Darius Jehangir (nee Ghaswala) v Bakhtawar Lentin of Mumbai & Ors.MANU/MH/0960/2006 : 2007 (1) Bom C. R. 915 : 2007 (1) Mh. L. J. 545 In the case before it, the Division Bench held, citing the Supreme Court decision in Beepathumma:3
39. In C. Beepathuma and Ors. v. Velasari Shankaranarayana Kadambolithaya and Ors. MANU/SC/0209/1963 : [1964] 5 SCR 836, the Supreme Court exposited the doctrine of election to the effect that one who accepts a benefit under a deed or will or other instrument must adopt the whole contents of that instrument, must conform to all its provisions and renounce all rights that are inconsistent with it. This principle is often put in another form that a person cannot approbate and reprobate the same transaction.40. Having elected to receive the bequests asper the Will dated 12th April, 1989 it is too late in the day for her to put different constructions to various clauses under the Will.(Emphasis supplied)
20. This is precisely the case here. The Defendants have accepted benefits under Vivien's will. Under Section 187 and 188, the Defendants have made their election; and, in any case, their right to elect and their waiver of the inquiry into the circumstances attendant to that election must now be presumed and held against them. These are specific legacies (the jewellery and the bequest of Rs.2 lakhs to their son), ones to which they had no entitlement on intestacy. Their own entitlement was under the Will itself, and only under the Will. The Defendants, by their own actions, accepted and are bound by the terms of the Will. They cannot simultaneously repudiate it. In addition, there is also the express acceptance of it under the writing Ex.P-5.
21. The will itself stands proved. An attesting witness, PW2, has deposed to it, as has the Petitioner, who identified Vivien's signature. The challenge to the will fails, for the reasons I have indicated. Issue No. 3 being answered in the negative, Issue No. 1 must be answered in the affirmative.
Re: Issue No. 4
22. No question arises of the Defendants having proved any undue influence; their challenge to the will is obliterated by their acceptance of legacies under it. The entire defence is fruitless and impermissible. The answer to Issue No. 4 is in the negative.
Re: Issue No. 5 : Order & Relief
23. In the result, the suit succeeds, and is decreed. Drawn up decree dispensed with. Registry to proceed to issue probate forthwith. No costs. Certified copy expedited. Original documents to be returned to the parties upon these being substituted with photocopies authenticated as true by their advocates.
1 C. Beepathumma and Ors. v V.S. Kadambolithaya and Ors., MANU/SC/0209/1963 : AIR 1965 SC 241
2ILR (1928) Mad. 556 ; cited in C. Beepathumma, supra.
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