Judgement THE COURT :- This is an application for the grant of probate of the will of Meghraj Kothari, who died on April 18, 1953. The applicants are the three brothers of Meghraj, namely, Chunilal Hiralal and Kanhaiyalal. They are named as executors in the will which is dated October 6, 1952. The will recites that the latter had only one daughter who has already been married and had no son. The testators wife is a lunatic. The will further recites that for spiritual benefit the testator had duly taken in adoption one Giridharilal, the eldest son of his brother Chunilal. The testator purports to make a testamentary disposition of his self-acquired properties only. Giridharilal, described as the adopted son, has been given the residue of the estate after payment of the marriage expenses of two daughters of Chunilal and a legacy of Rs.5000/- to Ramkrishna Mission Vidyapith, Deoghur. The will records that: "I have given some ornaments and moneys to my daughter and I have a desire to give further ornaments and moneys to her out of my personal estate. I have also given some shares to my adopted son Giridharilal." Nothing has been given to the daughter by the will. Nor do I find any bequest in favour of the widow. The executors have not been directed to make provision for the maintenance and residence of the lunatic wife. There is an expression of desire, however, on the part of the testator that the adopted son should, out of his properties, pay Rs.250/- per month for the maintenance of the testators lunatic wife. The last paragraph of the Will records that Rs.50,000/- deposited with the National Handels Bank N.V. is not the testators money but belongs to the joint firm of Kanindan Rawatmull, who are to get it back after his death. The three brothers and a son of a pre-deceased brother are the attesting witnesses. The Will does not appear to have been prepared by a solicitor. The paper on which the Will is written is such that the caveatrix is entitled to make comment and her counsel did make comment on it. 2. The petition for the grant of probate was ready on May 15, 1953. It was not, however, presented till June 17, 1953. The paper on which the Will is written is such that the caveatrix is entitled to make comment and her counsel did make comment on it. 2. The petition for the grant of probate was ready on May 15, 1953. It was not, however, presented till June 17, 1953. The reason given by learned counsel for this delay is that the executors did not get the valuation of the estate till sometime after May 1953. It appears from the Registrars certificate annexed to the petition that ad valorem fee was paid on June 2, 1953. In the affidavit of assets the estate has been valued at Rs.1,00,382/8/6. After deducting Rs.2000/- on account of funeral expenses, the net value of the estate is stated to be Rs.98,382/8/6. 3. Gopi Debi Memani, the only daughter of Meghraj, is contesting the Will. In her affidavit she denied (a) that Meghraj executed the Will, (b) that Giridharilal is the adopted son, and. (c) that the valuation of the estate is not what is alleged in the affidavit. She contended that as the sole heiress she had made an application for the grant of Letters of Administration of the estate on May 16, 1953. Her application for grant was being contested by the propounders of this Will and an affidavit to that effect has been affirmed on June 11, 1953. Comment is made by Mr. Hazra, learned counsel appearing for the propounder, that in law she has no interest whatsoever. The heir of the testator, on intestacy, is his widow. It is nobodys case that the widow was a lunatic right from birth. Therefore the widow is the sole heiress on intestacy to the complete exclusion of the daughter. 4. There are, therefore, two proceedings pending in this Court in the above goods. One is the application for the grant of probate of the will made by the three brothers and the other is an application for the grant of Letters of Administration to the estate filed by the daughter Gopi Devi Memani on the basis that Meghraj died intestate In due course, both the proceedings have been marked as contentious cause and are now appearing in my List for final disposal. 5. This litigation gave promise to be one of the celebrated Will case of this Court. The application for the appointment of administrator pendente lite was a grand show. 5. This litigation gave promise to be one of the celebrated Will case of this Court. The application for the appointment of administrator pendente lite was a grand show. Not only all leading counsel of this Court were briefed, but Mr. P.R. Das was brought down from Patna. On the executors giving certain undertakings to court in respect to the realisation of assets, keeping accounts and giving inspection to Gopi Devi Memani no administrator pendente lite was appointed. Subsequently, a number of applications were made in the above goods, inter alia, for keeping the tesamentary instrument in the safe custody of the Registrar for taking photographs and for chemical examination of the instrument by an eminent scientist. Each one of several applications made on behalf of Gopi Devi Memani was strenuously resisted. By my order the testamentary document was kept in the custody of the Court. I passed another order giving permission to Gopi Devi Memani to take photographs and I indicated that I would allow chemical examination later, if I found it necessary. 6. The case was opened with great ability by Mr. Manadev Hazra and the learned Standing Counsel for two days. On the third day, the learned Standing Counsel intimated to me that his clients do not propose to proceed further with the application and would not tender evidence in proof of the Will. The reason for not further proceeding with the testamentary instrument, as stated by the learned Standing Counsel, is that having regard to the value of the estate, it would be sheer lunacy to proceed further with this testamentary suit. The learned Standing Counsel stated that his client had already spent more than Rs.50,000/- in this litigation and if the case is fought to the bitter end, further costs to be incurred will far exceed the value of the estate. The propounders, therefore, have decided not to proceed with this suit any further, and having regard to the fact that there is a bequest in favour of the charity, thought fit to renounce executorship so that the interest of the other legatees may not be jeopardised. The propounders, therefore, have decided not to proceed with this suit any further, and having regard to the fact that there is a bequest in favour of the charity, thought fit to renounce executorship so that the interest of the other legatees may not be jeopardised. The document purporting to be a deed of renunciation reads as follows: "Whereas Meghraj Kothari of 168-B, Cotton Street, Calcutta, deceased, died on the 18th April 1953 at Calcutta leaving his last Will and Testament dated the 6th October 1952 thereby appointing us the undersigned, Chunilal Kothari, Hiralal Kothari and Kanhaiyalal Kothari, sole executors: Now we the said Chunilal Kothari, Hiralal Kothari and Kanhaiyalal Kothari do hereby renounce the executorship of the said Will. Chunilal Kothari Hiralal Kothari Kanhaiyalal Kothari 17-8-61." The learned Standing Counsel has submitted that under Secs.229 and 230 of the Indian Succession Act the executors are entitled to renounce at any time prior to the grant of probate. He is entitled to renounce, even if the executor has taken the oath of office, but before grant. He is entitled to renounce even if he has intermeddled with the estate. If in English Law an executor who has intermeddled is not allowed to renounce, that is not the law in India, Sections 229 and 230 of the Succession Act are the only sections dealing with renunciation. They do not indicate any restriction to the executors renouncing his office. Reference to English procedure and practice is worse than useless as stated by the Judicial Committee in two cases cited by the learned Standing Counsel. A number of decisions have been cited. The decisions cited are: Brojolal Banerjee v. Sharajubala Debi, ILR 51 Cal 745 : (AIR 1924 Cal 864); Mohamidu Mohideen Hadjiar v. Pitchey, 1894 AC 437; Jagadish Chandra v. Upendra Chandra, 48 Cal WN 294; Mordaunt v. Clarke, (1868) 1 P and D 592, Jnanendra Nath v. Jitendra Nath, 32 Cal WN 108 : (AIR 1928 Cal 274); 48 Cal WN 436 (sic); Gaziram Bania v. Emperor. AIR 1947 Cal 40 In the Goods of Narendra Narayan Roy, 50 Cal WN 126, Commr. of Income-tax, Bombay v. Western India Turf Club Ltd., AIR 1928 PC 1; Mirza Kusratulani v. Peara Saheb, 32 Ind App 244 (PC). AIR 1947 Cal 40 In the Goods of Narendra Narayan Roy, 50 Cal WN 126, Commr. of Income-tax, Bombay v. Western India Turf Club Ltd., AIR 1928 PC 1; Mirza Kusratulani v. Peara Saheb, 32 Ind App 244 (PC). Counsel appearing for the caveatrix, however, submitted that in India as in England an executor who has intermeddled is not entitled to renounce executorship and that the executor may be compelled to prove the Will if he has intermeddled with the estate. The observations relied on by the learned Standing Counsel have been made by the Judicial Committee in cases wherein applications were made not in the High Court in its testamentary jurisdiction. In exercise of the testamentary jurisdiction, when the Court entertains a testamentary matter, the Rules of this Court expressly provide that the Rules of the Supreme Court of England are to he applied, provided they are not inconsistent with the Indian Succession Act and the Rules of this Court. The decisions therefore do not touch the instant case. In the instant case the courts must follow the English practice. In England an executor who has intermeddled is not allowed to renounce executorship. The same is the law in India. Mr. Roy submitted that in the facts of this case I should compel the executors, who are also attesting witnesses, to come to the witness box to prove the Will and record my decision as to the validity of the testamentary instrument propounded. This is a dishonest attempt to prevent an adjudication by the court which the executors know will be against the Will. For nine years the executors have acted as executors, intermeddled with the estate, prevented the heir-at-law from getting possession, and kept the only daughter at bay. The executors have compelled the daughter to spend an enormous sum of money to disprove the Will. It would be contrary to justice to allow the executors to renounce at this stage even if renunciation is permissible in law, having regard to the acts and conduct of the propounders throughout the proceedings. 7. In my judgment, it is not necessary for me to decide this question at this stage. All that I am concerned with at present is whether probate should be granted to the executors in terms of the petition for grant. 7. In my judgment, it is not necessary for me to decide this question at this stage. All that I am concerned with at present is whether probate should be granted to the executors in terms of the petition for grant. The propounders now think fit not to proceed any further and not to tender evidence in proof of the Will. The only order that can be passed in such event is to dismiss the application. It is not for me to enter into the motives of the applicants in taking up the present attitude. Whether the motive is as stated by the learned Standing Counsel or as stated by Mr. S. Roy is irrelevant. Again what would be the effect of this order of dismissal is a question that need not be considered now. Nor do I think it necessary to record my view as to the factum and validity of the document placed before me purporting to be a renunciation in writing of executorship. There is no evidence that the signatures in the instrument are the signatures of the three executors nor have the executors appeared before me and orally renounced executorship. The question of law raised by the learned Standing Counsel, though very interesting and argued with great ability, cannot and need not be answered. 8. An executor may have a right to renounce office at any stage before grant under Secs.229 end 230 of the Indian Succession Act. There are authorities of this and other High Courts to that effect. The decision of the Judicial Committee reported in 1894 AC 437 seems to suggest that he can renounce even after he had intermeddled with the estate. It was a case from Ceylon. Some Indian decisions have cited that case with approval in testamentary proceedings in India. Reference can be made to the cases reported in 48 Cal WN 294 and ILR 51 Cal 745 : (AIR 1924 Cal 864), and in Khairati Ram, In the matter of AIR 1931 Lah 476. In none of the above cases except the case reported in ILR 51 Cal 745 : (AIR 1924 Cal 864) the executor was proved to have intermeddled. The peculiarity of the Calcutta case will be noticed later. But the question before me in the instant case is not whether an executor who has intermeddled can or cannot renounce. In none of the above cases except the case reported in ILR 51 Cal 745 : (AIR 1924 Cal 864) the executor was proved to have intermeddled. The peculiarity of the Calcutta case will be noticed later. But the question before me in the instant case is not whether an executor who has intermeddled can or cannot renounce. The question before me is whether an executor who has actually made an application for grant and proceeded upto hearing, thereby compelling the caveatrix to incur enormous costs, can be allowed to renounce, so as to make his own application incompetent in law. It is entirely a different question. The case reported in ILR 51 Cal 745 : (AIR 1924 Cal 864) is the only case cited where the applicant for probate was allowed to renounce. But such renunciation was allowed by the Court, because all the parties interested, including the party who was opposing the grant, entered into a compromise, a term of which was that the executor should renounce. No case has been cited wherein in spite of the opposition of the caveator the executor has been allowed to renounce and make his own application for grant infructuous and ineffective. If it is necessary in the instant case, to record my decision whether I should allow the renunciation, I record my view that renunciation, in the facts of the instant case, is not permissible. I have, however, indicated before that it is not necessary for me to go into the question now. There is no oral renunciation by the executors before me. The document placed before me alleged to be renunciation in writing is not proved to have been signed by the executors. Apart from law, therefore, the fact of renunciation has not been proved according to law, At the request of the learned Standing Counsel I am directing the document to be kept with the records. For reasons stated above, I am not called upon to make any adjudication on the document, nor do I make any such adjudication. 9. For reasons given above, the application fails and must be dismissed and I make an order accordingly refusing the grant. 10. The parties have incurred enormous costs and it is contended on behalf of the caveatrix that she should be properly compensated. 9. For reasons given above, the application fails and must be dismissed and I make an order accordingly refusing the grant. 10. The parties have incurred enormous costs and it is contended on behalf of the caveatrix that she should be properly compensated. Costs of the parties appearing to oppose the grant must be paid by the propounders, including all reserved costs, if any, as also the costs of taking photographs, which include the fees paid for taking photographs, and making report. Certified for three Counsel. Application dismissed.