Jai Krishna Srivastava v. Rajeshwar Dayal — 1988 DIGILAW 1133 (ALL)

JUDGMENT A.P. Misra, J. - The petitioner, the son of late Sir J.P. Srivastava, moved the present petition under Section 302 of the Indian Succession Act for giving direction to the executor of the Will dated 14th October, 1960, by Lady Kailash (mother of the petitioner) not to give effect to the letter dated 15th December, 1984, issued to the petitioner and respondent No. 2 and letter 11th January, 1985, issued by the executor, and further for a direction to the executory to accept a sum of Rs. 3,50,000/ - from the petitioner towards petitioners liability to avail of the settlement of the entire premises "Kailash" and direct the executor to give his assent thereto. 2. Lady Kailash, widow of late Sri J.P. Srivastava, has two sons, namely, Jai Krishna Srivastava (petitioner) and Hari Krishna Srivastava (respondent No. 2) and five daughters, namely, Laxmi (since deceased) and her son Sidharth Narain (respondent No.3), Smt. Sushila (respondent No. 4), Smt. Sarla Sehgal (respondent No. 5) Smt. Shakuntala Masani (respondent No. 6) and Km. Malti Srivastava (respondent No. 7). She executed a Will on the 14th October, 1960 and appointed Sri Rajeshwar Dayal, Sri Narotiam Sehgal, ICS, Sri Venetachari, ICS and Rani Phul Kumari, Rani of Sherkot as the executor of the said Will. Lady Kailash died on 12th November, 1962. On the 7th December, 1963, the District Judge, Lucknow granted a probate in respect of the aforesaid Will. The dispute which is being raised from time to time between the parties is in respect of the interpretation of certain clauses under the Will. At one stage, it is alleged, that on account of delay in paying the liabilities by the sons an application was moved in the Delhi High Court that the sons forfeited the right of inheritance since they had not complied with the conditions imposed under the Will. However, subsequently the said application was withdrawn. Thereafter, Rajeshwar Dayal, on of the executor (son - law - of lady Kailash) moved a petition under Section 302 of the Indian Succession Act in 1972 in this Court at Lucknow Bench with the allegation that the two sons of the testatrix had refused to accept the gift and prayed for suitable directions. Thereafter, Rajeshwar Dayal, on of the executor (son - law - of lady Kailash) moved a petition under Section 302 of the Indian Succession Act in 1972 in this Court at Lucknow Bench with the allegation that the two sons of the testatrix had refused to accept the gift and prayed for suitable directions. This Court by means of judgment dated 18th August 1977, held that the intention of the testatrix was that the sons should get the property and there was no outer limit of time mentioned in the Will be indicate willingness by them and there was no refusal on the part of the sons to accept the conditional bequest for discharging the liability. Thereafter, this Court directed that the aforesaid sole executor to exercise his discretion in accordance with the Will. It is relevant to mention here that from time to time other executors ceased to function on one account of the other. It was only Sri Rajeshwar Dayal, who was left as the executor for the execution of the Will. In fact, even on account of circumstances arising even he fell and accordingly resigned and made such an application to the Court for its acceptance, which was declined by the Court and he thereafter continued as the executor of the said Will. 3. According to the petitioner's case, under paragraph 4 of the Will the premises "Kailash" located in Nawabganj, Kanpur,was to devolve two sons, viz. the petitioner and respondent No. 2 on their agreeing to pay the debts in respect of aforesaid property. In pursuance thereof the executor through letter dated 31st January, 1967, fixed the liability of the testatrix at Rs. 3,50,000/ - which was required to be paid by the sons in equal shares, namely, Rs. 1,75,000/ - each. However, since the amount was not encashed by the executor they treated it as refusal on the part of the sons to accept the gift. It is this stand of the executor this Court declined to accept that the sons refused to accept the gift made by lady Kailash under the said Will. Subsequently, on 23rd May, 1978, the executor demanded Rs. 1,75,000/ - from each of the two sons to which the petitioner objected. It is this stand of the executor this Court declined to accept that the sons refused to accept the gift made by lady Kailash under the said Will. Subsequently, on 23rd May, 1978, the executor demanded Rs. 1,75,000/ - from each of the two sons to which the petitioner objected. According to him, in view of paragraph 3(b) of the Will since the respondent No. 2 did not pay the fair rent of the premises which was in his occupation belonging to the daughters of the testatrix, he disentitled himself from any benefit in the Will. As aforesaid, on 17th September 1980, Rajeshwar Dayal, the sole executor, submitted his resignation in the court of the District Judge, Lucknow, which was rejected by the court on 28th July, 1984, with a further direction to him to complete the execution of the administration of the Will. Thereafter, the executor on the 15th December, 1984, wrote two letters, one to the petitioner and the other to respondent No. 2 demanding Rs. 5.95,677.42 from the petitioner and requiring a further undertaking relating to the payment of the present and future taxes etc. relating to the entire estate and demanding only Rs. 1,75,000/ - along with Rs. 24,677.42 from the respondent no. 2 and it is this discriminatory demand, which the petitioner alleged shows the bias and collusion of the executor with the respondent No. 2. According to the petitioner, liability of lady Kailash was to be liquidated equally by the two sons to the extent of Rs. 1,75,000/ - . There was no justification for the executor to have demanded the aforesaid high amount from the petitioner and the low amount from the respondent No. 2. It was further urged that since the liability has to be borne by the sons only to the extent of the value of Kailash in accordance with the Will and as per the executor himself through letter dated 31st January, 1967, fixed the value of Kailash and thus the liability which the sons have to bear in order to liquidate the liability of their mother proportionately comes to 1,75,000/ - each, thus, there is no justification for the executor for making exorbitant demand from the petitioner. It is relevant to refer here that Sidharth Narain, son of one of the daughter of late lady Kailash, moved an application in the court of the District Judge, Lucknow regarding payment of lair rent of the premises in question in occupation of respondent No. 2 The District Judge on 12th February, 1985, rejected the said application by holding he had no jurisdiction in the matter after the grant of probate and further indicated such a direction could only be obtained under Section 302 of the Indian Succession Act from the High Court. Thereafter, the present petition by the elder son has been moved under Section 302. The petitioner sought for a direction by moving the present petition under Section 302 of the Indian Succession Act not to give effect to the assent given by the executor to the respondent No, 2 for his half share in Kailash through letter dated 11th January, 1985. 4. The petitioner, in short, raised two questions through this petition, viz, respondent No. 2 having not paid the fair rent as stipulated in paragraph of the Will he has disentitled himself from the benefit which he is entitled under the Will and on account of the desire of lady Kailash that in case one of the sons is not willing to accept the gift to him subject to the conditions mentioned therein then the other sons shall be entitled to accept the whole gift subject to the aforesaid condition upon his paying such amount as the executor considered reasonable having regard to the value of the said property; and since the respondent No. 2 on account of paragraph 3 having not complied with the condition and having forfeited the rights, his share should come to the petitioner in accordance with the Will the executor should be given direction to give assent to the whole property of Kailash in favour of the petitioner. Further the question raised is for a direction not to give effect to the letter given to the petitioner dated 12th December, 1984, through which demand of Rs. 5,95,677.42 p. was made from the petitioner as illegal and not in consonance with the Will. Further the question raised is for a direction not to give effect to the letter given to the petitioner dated 12th December, 1984, through which demand of Rs. 5,95,677.42 p. was made from the petitioner as illegal and not in consonance with the Will. On the point of interpretation of paragraph 3 (b) of the Will and what would be the fair rent whether it was paid by the respondent No. 2 or not respondent No. 3 Sidharth Narain, son of one of the daughter supported the case of the petitioner. The daughters, who were parties in the present proceeding in spite of notice have not contests the matter and Hari Krishna Srivastava, the other son (respondent No. 1) contested the interpretation given by the petitioner under the Will and stoutly defended by stating that he had paid the fair rent and under paragraph 3 (b) he could not be said to have disentitled himself to the benefit given by his mother. The executor also defended his action countering the claim made by the petitioner. 5. I have heard the learned counsel for the parties and perused the materials on the record. 6. Coming to the first point raised by the petitioner regarding interpretation of paragraph 3(b) of the Will two further questions have been raised : "(a) Whether there was any agreement of fair rent between the concerned daughters and respondent No. 2 after the death of lady Kailash and the rent agreed was fair rent, or not; and (b) Even if there was such an agreement rent agreed was a fair rent at one point of time could it be said to fair rent in the subsequent years and whether the Will while speaking about fair rent has confined to one point of time or was it to continue in future so long as respondent No. 2 occupied the premises in question. 7. Before dealing with the aforesaid questions it is relevant to quote paragraph 3 (b) of the said Wills : (b) To my daughters, Lakshmi, Sushila and Sarla give the other half of the said property including the tenement now occupied by may son Hari Krishna who shall either vacate the said tenement or pay to my daughters a fair rent for the same. Any interest which Hari Krishna is to receive under this Will is dependent and subject to his paying a fair rent to my daughters for the said tenement if he continues to occupy it. If he does not agree to pay the fair rent to my daughters, then any interest that he is to receive under this V/ill is hereby revoked and such interest shall fall into the residue of my estate. My daughters Lakshmi, Susheela and Sarla shall be entitled to the said half plot with the said tenement absolutely as tenants - in - common in equal shares." Strong reliance was placed by the petitioner on the letter dated 1st April, 1979, written by the advocate on behalf of the executor to respondent No. 2 wherein it was mentioned that Rs. 300/ - per mensem was provisionally agreed in 1964 and since then sixteen years have elapsed and rent has increased considerably in Kanpur and the present rate of rent in the violently the accommodation is about Rs. 1800/ - per mensem which he should pay in terms of paragraph 3 (b) of the Will. On the 15th March, 1964, the executor wrote to respondent No. 2 that he had reached a stage in the execution of his mothers Will, where they most ascertain his wishes in regard to the house in his occupation. The executor asked for whether he desired to continue in the occupation in question as a tenant or to pay the fair rent and indicate as to what he would consider to be a fair rent of the said accommodation. In reply, the respondent No. 2 on 22nd April, 1964 stated that he had already conveyed verbally that he shall continue as a tenant since he is in possession of the said premises since 1954. A accommodation after the passing of U.P. Control of Rent and Eviction Act, 1947, should be given the same meaning as is recognised concept under the said Act. Therefore, he further replied that the executor should fix the fair rent accordingly and to let him know as to what he should pay and whom to pay the arrears and future rent. Therefore, he further replied that the executor should fix the fair rent accordingly and to let him know as to what he should pay and whom to pay the arrears and future rent. Thereafter, on 27lh April, 1964, the executor wrote a letter to the respondent No. 2 wherein information was given to him regarding the family meeting at Rejeshwar's house on Sunday, the 3rd May, 1964, at about 10 a.m. with a request for him to go the Delhi for the same. On the same day, another letter by the executor was sent to the respondent No. 2 which was in reply to the aforesaid letter of respondent No. 2 dated 22nd April, 1964. In this letter, the matter about fixation of fair rent was again referred with the surprise expressed by the executor of the reference to the U.P. Control of Rent and Eviction Act for fixation of the fair rent by the respondent No. 2. It was further indicated that looking to the bonds of love between brothers and sisters and keeping the same spirit he would suggest the fair rent which could be shared by the three sisters. Letter dated 12th May, 1970, written by Sri Naroltam Sehgal, further indicates that the claim of respondent No. 2 that the rental of Rs. 300/ - per month plus charges of white washing and payment of taxes was on higher side was not correct. However, it is significant, this letter does indicate that there was an agreement of payment of fair rent at the aforesaid meeting of the family members on the 3rd May, 1964. The petitioner in order to show as to what is fair rent relied on certain documents showing fair rent of the similar accommodation in question Rs. 1100/ - per month on the basis of the letter by the Indian Explosives Ltd. to Mrs. M.R. Masani on the 16th September, 1972, and Rs. 1500/ - for the accommodation in the tenancy of U.P. Bhumi Seema for which reliance was placed on the certificate issued by the aforesaid tenant on the 11th February, 1985. On the basis of the aforesaid document it was strongly contended that Rs. M.R. Masani on the 16th September, 1972, and Rs. 1500/ - for the accommodation in the tenancy of U.P. Bhumi Seema for which reliance was placed on the certificate issued by the aforesaid tenant on the 11th February, 1985. On the basis of the aforesaid document it was strongly contended that Rs. 300/ - could not be a fair rent of the said accommodation and thus since the respondent No. 2 did not pay and is not paying the fair rent he has disentitled himself from the said property of receiving half share in "Kailash". It is not necessary for me to go into the question as to what could be the fair rent now or subsequent to the said date of agreement between the parties and similarly the various documents filed by the parties to show as to what is the fair rent need not be gone into. 8. It was argued that a fair rent is that rent which is just and equitable both to the sons and daughters. Then, what was fair in 1964 could not be fair in the present for which reliance was placed in the case of Narai and others v. Om Prakash Gupta, 1987 (5) SCC p. 61. In this case. Rs. 300/ - per month was fixed as rent of the disputed premises fifty years back and it is in this context the Supreme Court held that this is unfair now. There could be no doubt that fairness of rent will be changing from time to time. Supporting this contention, it was urged on behalf of the respondent No. 3 Sidharth Narain that if respondent No. 2 does not pay fair rent he loses the right in the property which he has to receive under the said Will. It was urged, in fixing fair rent various circumstances is to be taken into consideration, namely, the size of the accommodation, the locality where it is placed and the fair rent receivable by similar accommodation in the vicinity of the disputed accommodation. It was strongly argued that, in fact, there is no agreement on rent between the respondent No. 2 and the sisters at any point of time. Reference was made to the aforesaid letter dated 27th April, 1964, by the executor to respondent No. 2 to show that Rs. 300/ - was not a fair rent. It was strongly argued that, in fact, there is no agreement on rent between the respondent No. 2 and the sisters at any point of time. Reference was made to the aforesaid letter dated 27th April, 1964, by the executor to respondent No. 2 to show that Rs. 300/ - was not a fair rent. It is relevant to mentioned this letter was in reply to the earlier letter written by the respondent No. 2 to the executor by giving reference to the U.P. Control of Rent and Eviction Act to which a surprise was expressed by the executor for fixing the fair rent. It was further urged even if there was such an agreement than what was contemplated under the Will was the fair rent and not the agreed rent and he also supported the case of the petitioner that what was agreed in 1964 to be fair rent could not be fair rent in 1984 or subsequently. 9. In reply to the aforesaid argument learned counsel for the respondent No. 2 urged that in deciding the fairness of the rent it has to be lair qua payment of rent to be made by one to another, their relationship, the background under which or the basis for which the fair rent is to be fixed apart from other considerations. Since the Parties not only belong to a very affluent family but each persons were occupying either himself personally or through their husbands a very high office or were beaming with of financial affluence thus question of fair rent was never in terms of financial, relief to the concerned daughters. The only purpose for which the mother referred about the fair rent was that after her death he may not continue in possession for all times in future and for that purpose a status of tenant was given to in. It was further argued that it could be never the intention of the mother while fixing fair rent specially for an accommodation, which was to be shared by the three sisters whose husbands were on very high officers, to to give any financial help to them by the payment of fair rent. Thus, in this light the fairness was left to be decided between the son and the concerned daughters. Thus, in this light the fairness was left to be decided between the son and the concerned daughters. Further, argument was that the rent was actually agreed to on the 3 May, 1964 in the aforesaid meeting of the family members, which was attended both by the petitioners, respondent No.2 and the three daughters in question along with the executor. In paragraph 11 of the counter affidavit by the respondent No. 2 it was stated that he has paid and has been paying the fair rent for the house in his occupation which was settled and agreed between the executor, the sisters concerned and the petitioner in the aforesaid meeting on the 3rd of May, 1964, at New Delhi and after the said agreement the rent of Rs. 10/ - per month which was being paid since the time of his mother was increased to Rs. 300/ - per month plus house tax and Water tax minus one month's rent for repairs and he said all the effacers at the said rate plus the aforesaid taxes subject lo deductions as aforesaid since the date of death of lady Kailash. The said amount was paid to the executor till 1st January, 1971, on which date the executor gave assent to the three sisters for receiving the property on the said will and thereafter he has been paying the rent to the sisters, who have been accepting the same without any objection. 10. It was further contended that was only Mr. Sidharth Narain for the first time after death of his mother, namely, Laxmi Hridaya Narain, one of the daughter of lady Kailash, raised this question in the year 1979 that the rent which was paid was not fair rent. The sisters never objected nor the they are objecting even today, who arc parties to the present proceedings. 11. At this juncture learned counsel for the respondent No. 2 Sri S.N. Verma stated that his client wants to make it clear that his client is not shirking and is not against payment of any increased rent with the passage of time what is though to be fair and is never the intention of his client that either his sisters or son of one of the sister not receive the fair rent and if, any offer even today is made his client is ready to settle in the wide interest. However, it was strongly refuted that no agreement was reached in 1964 about fair rent and the question of receiving the Property as beneficiary under the Will would be subject to continuance of the fair rent being aid at all times in future. The will desired the payment of fair rent for the vesting of the property, which respondent no. 2 was to receive and once that was paid or agreed, it cannot be said that the property once vested at one point of time would he divested again. Such as interpretation could not be given on the plaint reading of the language of the Will, nor could it be the intention of the textatrix. 12. It is significant to refer to paragraph 10 of the counter - affidavit filed by the executor - respondents No. 1 wherein he tried to explain his aforesaid letter dated 1st April, 1979, written to the respondent No. 2 regarding payment of fair rent and indicating that other similar accommodation are fetching a very high rent. In that it was specifically mentioned that the respondent No. 2 agreed that the approval of the three sisters that the fair rent to be Rs. 300/ - per month. The emphasis on behalf of respondent No. 2 was that it could not be disputed that there was all agreement between the respondent No. 2 and three sisters after the death of their mother paying the fair rent. It is also relevant to refer to paragraph 9 of the supplementary - counter affidavit by the executor there it was specifically mentioned regarding the rent of the disputed premise that Rs. 300/ - per month was fixed by the executor with the consent of the concerned beneficiaries which was fair market rent until the time of the distribution of the said to in 1971 to the three sisters and during this period no demand or request was ever made by the assignee to the executor to increase the rent and thereafter the executor had no concern over the property as it fell under the ownership of the said three sisters. Reliance was placed by the respondent No. 2 on the letter dated 24th July, 1964, written by the executor to the respondent No. 2 wherein demand of difference of rent between Rs.1/ - and Rs. Reliance was placed by the respondent No. 2 on the letter dated 24th July, 1964, written by the executor to the respondent No. 2 wherein demand of difference of rent between Rs.1/ - and Rs. 300/ - per month from the date of the death of the mother was made alongwith the demand of Rs. 450/ - towards house and water tax. This letter was shortly after the aforesaid meeting and the executor never referred that the rent which is agreed was not fair or was only provisional. Similar letter dated 12th May, 1979, written by the executor to the respondent No. 2 written by the executor to the respondent No. 2 again referred to the settlement of rent in the meeting of 3rd May, 1964. Thus even after issue of several years the executor was referring to the said meeting showing an agreement of fair rent between the respondent No. 2 and the sisters concerned in the prasence of the executor and the petitioner. It is very significant to reproduce few lines of the said letter to show as to the fair rent of the disputed occommodiation : " ........I would also add that your impression that Rs. 300/ - per month to a high rental for the premisses is not correct. You are were that for the adjoining portion of the house a Shekuntala if receiving Rs. 500/ - per month and in the near future she is likely to get even higher rentals. Similarly, I believe, Malati gets Rs. 450/ - from one portion of her house. I may point out that Rs. 300/ - is the lowest rental which is being paid for these semi - detached houses and Dr. Anu Singh is the only other tenant who is paying this low rent." It is significant that even in the year 1970 reference to similar accommodation (semidetached) house as to receiving lowest rental including the rent of Rs. 300/ - per month. In this light, it cannot be said that the fair rent if it was agreed between the sisters concerned and respondent No. 2 in the year 1964 could not be fair rent then. 300/ - per month. In this light, it cannot be said that the fair rent if it was agreed between the sisters concerned and respondent No. 2 in the year 1964 could not be fair rent then. From the aforesaid document it is also very clear that there was an agreement reached between the three sisters and the respondent No. 2 about the fair rent and at no point of time the sisters ever raised the question of increasing the rent or rent being not fair. Thus, it is concluded that on the 3rd May, 1964, there was an agreement of the fair rent of the disputed accommodation and the conditions referred to in paragraph 3(b) of the Will at that point of time was complied with by the respondent No. 2. There is nothing on the record, after 3rd May, 1964, to show that even after that the sisters raised any objection to the rent, which was being paid by the respondent No. 2 not being fair. 13. Apart from this, the argument on behalf of the petitioner and respondent No. 3 was that was written in the Will was the fair rent and not agreed rent and since agreed rent was not a fair rent the respondent No. 2 did not comply with the conditions contained in the Will. The argument is untenable. What would be the fair rent, no doubt, has not been specified under the Will, the desire of the testatrix was that after her death a fair rent, which her daughters feel to be fair, should be given by the respondent No. 2 to them. Once the beneficiaries of the property having agreed on an amount without there being anything on the record showing that it was either under duress or through misrepresentation of facts or committed fraud on them, it cannot be said, what was agreed on the facts and circumstances of this case was not the fair rent. 14. In interpreting the language of the Will the words have not to be interpreted like the words if statute. 14. In interpreting the language of the Will the words have not to be interpreted like the words if statute. It is in this context section 128 of the Indian Succession Act provides: " .........where a will imposes a condition to be fulfilled before the legatee can take a vested interest in the thing bequeathed, the condition shall be considered to have been fulfilled if it has been substantially complied with." As I have said above there is nothing on the record to show that the agreement dated 3rd May, 1964, was not an agreement of Payment of fair rent, on the beneficiaries of the rent, viz. the concerned sisters ever objected subsequently that the rent was not fair. In fact, as aforesaid, it is only after more than six years on the 12ih May, 1970, the executor while contradicting the letter of respondent No. 2 about the rent being fixed at the higher side gave certain rent for the other accommodation showing that some of them were higher and some of them were identical with the one which the respondent No. 2 was paying to justify that the rent which was fixed could not be said to be on the higher side. However, it. was for the first time on the 1st April, 1979, letter was written by the executor saying that similar accommodations were fetching very high rent and he should pay more for the said accommodation. This letter was explained by the executor later in his affidavit that this letter was written on the instigation of the respondent No. 3 viz. Sidharth Narain. In fact by that time he ceased to have any jurisdiction as the property much before this date finally vested in the concerned sisters after tire agreement of the fair rent. Without going into all the details, as aforesaid, it is suffice to say in this case that the agreed rent was also the fair rent fixed on the 3rd May, 1964. 15. Learned counsel for the petitioner and the respondent No. 3 further urged that even if there is settlement and even if it could be said that fair rent of the disputed accommodation in 1964 was Rs. 15. Learned counsel for the petitioner and the respondent No. 3 further urged that even if there is settlement and even if it could be said that fair rent of the disputed accommodation in 1964 was Rs. 300/ - per month, but the same cannot be said to be subsequently and as per paragraph 3 (b) of the agreement die respondent No. 2 has not only to pay fair rent initially but even in future and thus if not paid he disentitled himself from the property which he has received earlier. It was on that principle, it is urged that the fair rent fixed in 1964 cannot be fair rent today and since he has not paid fair rent he has disentitled himself to the half share in 'Kailash' as per paragraph 3 (b). the benefit receivable by the respondent No. 2 depended on his paying fair rent to his sisters for the said tenant and since it further used the word" if he continues to occupy it" connotes that the payment of fair rent has to be continued in future and is not confined to on point of time and further spice the said paragraph negatives a right given under the Will and specially with the use of the words" If he does not agree to pay the fair rent to my daughters, then any interest that he is to receive under this Will is hereby revoked". On the basis of the aforesaid language the argument was that not only he has to agree and pay fair rent at one point of time but he has to continue to pay the said rent continuously till he occupies the accommodation in question in future and at any point of time if he fails to pay the same he would disentitle himself to a right created under the said Will. Reliance was strongly placed on behalf of the petitioner and the respondent No. 3 on Section 131 of the Indian Succession Act, which is quoted below : "Section 131. - Request over, conditional upon happening or not happening of specified uncertain event. (1)A bequest may Ire made to any person with the condition superaded that, in case a specified uncertain event shall happen, the thing bequeathed shall go to another person, or that in case a specified uncertain event shall not happen, the thing bequeathed shall go over to another person. (1)A bequest may Ire made to any person with the condition superaded that, in case a specified uncertain event shall happen, the thing bequeathed shall go to another person, or that in case a specified uncertain event shall not happen, the thing bequeathed shall go over to another person. (2) In each case the ulterior bequest is subject to the rules contained in sections 120, 121, 122, 123, 124, 125, 126, 127, 129 and 130." 16. It was urged that a bequest under it goes to another person when a specified uncertain event happens or does not happen, which is subsequent. Thus, the property even once vested is to be divested from the person in whom it has vested under the Will. In effect the argument was that it is not always whereunder the Will a property vested in a person it cannot be diverse Before Section 131 can be applied the following ingredients are necessary: (a) a request must be with the condition super added being the condition should be in case a specified uncertain event shall fall; (b) there should be a specified uncertain event which should or should not happen; (c) then such a request goes to another person if the aforesaid ingredients are in existence. Firstly, this speaks about the condition super added, which necessarily must be condition after the property having vested in a person and secondly, super added condition must be on happening or not happening of an uncertain event. In the present case, the language used in paragraph 3(b) cannot be read to the vested property to be divested from the person in whose favour it has vested. In fact, there is no superadded condition in it. It is time for vesting the property there is a condition specified, but thereafter there absence of any superadded words in it for divesting. The very use of the expression superadded in Section 131 must be a condition clearly specified than the condition for the initial vesting. Even if the same words are to be read then the language of the Will should be very clear as to make the same condition to be treated as super added condition. In the present case by way of interpretation it has been argued that the condition must be treated to be added by the testatrix, which was not only meant for initial vesting but also for future. In the present case by way of interpretation it has been argued that the condition must be treated to be added by the testatrix, which was not only meant for initial vesting but also for future. It is always open for a testator to lay down condition as is desired in accordance with law, but in the absence of clear expression used in the Will only by interpretation it would not be fair, nor legal to divest a property which has vested in a person in accordance with the said Will. In fact, apart from the absence of superadded words in the Will there is absence of even the second ingredients, viz. existence of specific uncertain event. In the present case, there is no uncertain event which was to happen. The only uncertainly, if at all, was whether he wants to continue to be in possession of the said tenement or vacate the same. In case he vacates there is no question of paying any fair rent and in case he continues to occupy he has to pay the fair rent. The non payment of fair rent, which is the foundation of divesting the property from the respondent No. 2 could not be said to be a specified uncertain event. The aforesaid section event happening. It may be in a case where a testator bequests certain money to A on his attaining the age of 18 and further presides in case he dies before that age, it shall go to B. The property which goes to B and which was initially bequeathed to A was on condition of happening of an uncertain specified event, viz. the death of A. In fact, Section 131 covers all cases either where the property before being vested goes to another person on happening of certain specified uncertain event or even after vesting if it is for life to another person on his death. It does not cover cases where the property absolutely vests initially and is divested on his non performance of a condition. The nonperformance of condition could not be said to be an uncertain event under the said section. Thus, no benefit could be given of this section for the purpose of interpretation of paragraph 3 (b) or the aforesaid Will. 17. The nonperformance of condition could not be said to be an uncertain event under the said section. Thus, no benefit could be given of this section for the purpose of interpretation of paragraph 3 (b) or the aforesaid Will. 17. In Navneet Lal alias Rangi v. Gokul and others, AIR 1976 SC p. 794, the Supreme Court laid down how the construction of the Will is to be made by the courts which is quoted below : "(1) In construing a document whether in English or in vernacular the Fundamental rule is to ascertain the intention from the words used; the surrounding circumstances are to be considered; but that is only for the purpose of finding out the intended meaning of the words which have actually been employed. (2) In construing the language of the Will the court is entitled to put itself into the testator's armchair and is bound to bear in mind also other matters than merely the words used. It must consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular senses. But all this is solely as an aid to arriving at a right construction of the will, and to as certain the meaning of its language when used by that particular testator in that document. (3) The true intention of the testator has to be gathered not by attaching importance to isolated expressions but by reading the Will as a whole with all its provisions and ignoring none of them as redundant or contradictory. (4) The court must accept, if possible, such construction as would give to every expression some effect rather than that which would render any of the expressions in operative. The court will look at the circumstances under which the testator makes his will, such as the state of his property of his family and the like. Where apparently conflicting dispositions can be reconciled by giving full effect to every words used in a document, such a construction should be accepted instead of a construction which would have the effect of cutting down the clear meaning of the words used by the testator. Further where one on the two reasonable constructions would lead to intestacxy that should be discarded in favour of a construction which does not create any such hiatus. Further where one on the two reasonable constructions would lead to intestacxy that should be discarded in favour of a construction which does not create any such hiatus. (5) To the extent that it is legally possible, effect should be given to every disposition contained in the Will unless the law prevents effect being given to it. Of course, if there are two repugnant provisions conferring successive interests if the first interest created is valid the subsequent interest cannot take effect but a Court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given as far as possible to every testamentary intention contained in the Will." 18. Similarly in Yelmanchili Siva Panchaksharamma v. Velmanchili Chinnabhayi, AIR 1967 SC 207 , it was laid down that surrounding circumstances, the status of the testator and the beneficiaries etc. should be taken into account in interpreting a Will. It is also well - settled that an interpretation of the Will which defeats vested interest has always to be construed strictly and its breach has to be seen by a clear provision even if two interpretations are possible, one which defeats the vested interest should not be applied. It should only be in a case either the language used be clear by specific words or where one and only on interpretation is possible the court should accept it. 19. Even looking to paragraph 3 (b) and testifying it on the aforesaid principle it is clear that the mother of both, the petitioner and the respondents, desired good relationship between brothers and sisters. It was provided that the son who is occupying the tenement should pay the fair rent to the sisters who are to inherit the said property even though the word 'tenant' was used in the Will, it was only to give legal colour to the occupation. The whole tenor of the Will looking to the family to which they belong and looking to the status and position of the family, it could not I. be said that the testatrix by using the words 'fair rent meant strictly in terms of fair rent to be obtained as between landlord and tenant, but it included the agreed rent. 20. 20. In interpreting any word or paragraph of a Will the whole of the Will has to be read and the intention and desire of the testator is to be as certainly. Keeping that in view it is significant in the present Will the mother disposed of her property no equally to her sons and daughters, but, according lo the need and situation in which they were placed at the time when she had executed the same. Two flats were given by the only one daughter since she was unmarried. One exclusive flat was given to the daughter who married to a politician and a journalist and the last flat was given jointly to the three daughters. Who were all well placed in their life, two of which were wives of very senior I.C.S. Officers and the only other immovable property, viz. 'Kailash' was given to her two sons equality. In interpreting any Will equity and conscience are not to be taken into account but the intention and desire has to be read from the whole of the Will. On the one hand, she desired that fair rent be paid to the there sisters concerned by the son occupying the same in case he continues to occupy the said accommodation by creating the relationship of landlord and tenant, so that he may not create hindrance in future in case the said accommodation is required by the sisters. On the other hand, a condition was imposed that the son who continues to enjoy the said premises should par' the fair rent to the sisters concerned, the tenor of the whole Will looking to her intentions and desire it is not possible to read from the language used in paragraph 3 (b) that even if initially an agreement for fair rent has been arrived even in future continuously the payment of fair rent be a condition to be complied with all the time and its failure should divest the concerned son from the property. As aforesaid, the three sisters were very affluent and any rental which is distributed in one third could not be said to be a figure for providing financial relief and thus the testatrix could never have thought to divest the said son from the said property as to apply the condition of paying fair rent for all times to come. As aforesaid, the three sisters were very affluent and any rental which is distributed in one third could not be said to be a figure for providing financial relief and thus the testatrix could never have thought to divest the said son from the said property as to apply the condition of paying fair rent for all times to come. However, once again it is reiterated even if testatrix did not intend for future time it is on equity, conscience and as an act of good conduct expected of the son to pay the fair rent by negotiating with the sisters concerned and coming to an amicable settlement if he desired to continue in the said occupation. 21. Apart from this, the language of paragraph 3 (b) of the Will is very clear. It uses the words `Any interest which Hari Krishna is to receive under this Will is dependant and subject to his paying a fair rent.' By the use of the words "is to receive" it is clear that the condition of paying fair rent was a condition to be complied with by the said beneficiary before he receives the benefit under it. Even the subsequent words in the same paragraph "If he does not agree to pay the fair rent to my daughters, then any interest that he is to receive under this Will is hereby revoked". The expression of the words "is to receive" both in the earlier and later part make it clear that the testatrix's intention was payment of fair rent at the point of time when the property is to vest in favour of his son who is occupying the said tenement. 22. It is true that the respondent No.2 is in possession of the said property must even otherwise pay fair rent to the sister or her beneficiary which is expected of not only brother but any tenant occupying the said accommodation and that equally applies even to respondent No. 2. Looking to the family background, the status it is onerous duty of the respondent No. 2 to pay fair rent of the said accommodation to the sisters or the legatees. However, this equitable principle cannot be applied for the purpose of treating it to be a condition to disentitle such beneficiary in whose favour the property has already vested. Looking to the family background, the status it is onerous duty of the respondent No. 2 to pay fair rent of the said accommodation to the sisters or the legatees. However, this equitable principle cannot be applied for the purpose of treating it to be a condition to disentitle such beneficiary in whose favour the property has already vested. It could to be said, nor the language shows the intention of the testatrix to treat one of her son under the threat of sword of demociles for all times to come to divest him of this property, the moment the fair rent is not paid. The testatrix was very clear that the vesting of tire property depended subject to his paying the rent to which he must agree. There is no other superadded word, nor there is any clause to show that even subsequently if the fair rent is not paid he shall be divested of the said property. In the present case, firstly there was an agreement of the fair rent as far back as 3rd May 1964, and since thereafter rent was being paid by the respondent No. 2 and subsequently after the executor having given assent to the said property in favour of the three sisters concerned the property having vested in them all what was necessary to be complied with by the executor for this part under the Will was complied and there remained nothing to be enforced by him. In case the fair rent is not being paid by the respondent No. 2, firstly it is always possible to come to some understanding between the sisters and the legatees concerned or otherwise it is always up to them to take such legal recourse which is permissible to them under the law but it could not be said to be a matter to be enforced under the Will even after happening of the aforesaid two events. 23. Another principle of the interpretation of the Will is that in interpreting the same the words need not be added, specially where by adding it the right of the beneficiary is deemed to have been revoked, or where it provides penal consequence of divesting the right what has already vested. 23. Another principle of the interpretation of the Will is that in interpreting the same the words need not be added, specially where by adding it the right of the beneficiary is deemed to have been revoked, or where it provides penal consequence of divesting the right what has already vested. Looking in this light in paragraph 3 (b) unless the words are added in the Will argument of continuity of paying the fair rent for all times to come cannot be read. 24. Thus, from bare perusal of paragraph 3 (b) looking to the other circumstances and the provisions to the desire of the testatrix. I come to the conclusion that the testatrix desired payment of fair rent to be the condition precedent before vesting and was not a condition that even after vesting the property once vested would be divested back. 25. On behalf of the petitioner a challenge was made to the demand of the executor by means of letter dated 15th December, 1984, as against the petitioner to the time of Rs. 5,95,677.42, while it was only Rs. 1,75.000/ - plus Rs. 24,677.42 towards the maintenance of the road etc. as against the respondent No. 2. It was urged that the letter was issued on the same date and the exorbitant demand from the petitioner shows the bias and collusion of the executor with the respondent No. 2 and further the said demand was beyond the burden placed by his mother for receiving the said property and thus the executor went beyond his jurisdiction in making such demand. The argument was, under the Will the liability lo be borne by the sons was to pay the debts of the testatrix, medical, testamentary and funeral expenses, cost of administration including estate duty and the probate duty and as such the liability to be borne by the son was only to the extent of the value of "Kailash" (such value to be determined by the executor). This matter is not in dispute. However, it was argued, the executor though initially issued letters to both the sons to pay the debts which is to the tune of value of "Kailash" (which was determined by the executor to be Rs. 3,50,000/ - ). Thus demand from the two sons was to the tune of Rs. 1,75,000 each only. This matter is not in dispute. However, it was argued, the executor though initially issued letters to both the sons to pay the debts which is to the tune of value of "Kailash" (which was determined by the executor to be Rs. 3,50,000/ - ). Thus demand from the two sons was to the tune of Rs. 1,75,000 each only. However, subsequently by means of aforesaid letter dated 15th December, 1984, not only demand has been increased more than what is payable by the petitioner under the Will, but discrimination between him and respondent No. 2 was made, shows bias of the executor as against the petitioner and collusion VIth the respondent No. 2 when he asked for the payment from the sons of testatrix disproportionately. 26. On behalf of the executor an argument was raised that as far back as 31st January 1967, a letter was - written to be two sons by the Advocate of the executor fixing the value of 'Kailash' at Rs. 3,50,000/ - and further asking them to pay half of its value within six weeks from the said date in order to express their willingness to take the bequest of the house "Kailash". However, both the brothers did not deposit in spite of the said letter. The aforesaid demand was made though according to the executor the debts etc. of the testatrix even at that time was Rs. 4,73,675.50. However, the sons were evading the said payment in spite of the said notice and liability was to be cleared and the executor had to meet the same from other properties, which were intended for the benefit of other legatees. Further, on 23rd May, 1978, the executor sent notice again to both the sons making the same demand as aforesaid further stating that in case they desire time for payment then they must on close a bank guarantee for the stated amount, which would be discharged by September 15, 1978. The case of the executor is, after the said notice the respondent No. 2 did furnish the bank guarantee but the petitioner neither paid, or furnished bank guarantee. The bank guarantee of the respondent No. 2 was renewed from time to time. The case of the executor is, after the said notice the respondent No. 2 did furnish the bank guarantee but the petitioner neither paid, or furnished bank guarantee. The bank guarantee of the respondent No. 2 was renewed from time to time. In response to the said letter the petitioner on 27th July 1978, wrote to the executor that he had been advised that it was not possible for the executor to transfer the property then without the permission of the State Government and or the other authorities under the Urban Land Ceiling Act and thus the payment shall be made to him when he had shown that he had clear title to transfer. The learned counsel argued, this shows that even at that stage the petitioner was not in the mood to make the payment which he was required to pay under the will for clearing off the liabilities of the mother. Finally, a reply dated 4th August, 1967, was sent by the executor to the petitioner. This was relied to show the attitude of the petitioner that instead of taking the said letter of the executor by hand he asked to be sent by registered post and instead of depositing the money he was talking about settlement. Earlier, the executor took the stand which is clear from the letter dated 7th October, 1969, written to the two brothers that since they failed to exercise their option within a specified time written earlier by the executor for expressing their desire to take "Kailash" on paying off the liabilities fasten on them under the Will and, therefore, the said property shall now be transferred to the five daughters of the testatrix in accordance with the terms of the Will. When in spite of the said notice nothing was done the executor moved an application before the District Judge, Lucknow, who held, he had no jurisdiction after grant of probate and thus a petition under Section 382 of the Indian Succession Act was moved by the executor before this Court at respondent No. 2 when he asked for the payment from the ones of testatrix disproportionately. 27. On behalf of the executor an argument was raised that as for back as 31st January 1967, a letter was written to the two sons by the Advocate of the executor fixing the value of "Kailash" at Rs. 27. On behalf of the executor an argument was raised that as for back as 31st January 1967, a letter was written to the two sons by the Advocate of the executor fixing the value of "Kailash" at Rs. 3,50,000/ - and further asking them to pay half of its value within six weeks from the said dale in order to express their willingness to take the bequest of the house "Kailash". However, both the brothers did not deposit in spite of the said letter. The aforesaid demand was made though according to the executor the debts etc. of the testatrix even at that time was Rs. 4,73,675.50. however, the sons were evading the said payment in spite of the said notice and liability was to be cleared and the executor had to meet the some from other proportions, which were intended for the benefit of other legatees. Further, on 23rd May, 1978, the executor sent notice again to both the sons making the same demand as aforesaid further stating that in case they desire time for payment then they must on close a bank guarantee for the stated amount, which would be discharged by September 15, 1978. The case of the executor is, after the said notice the respondent No. 2 did furnish the bank guarantee but the petitioner neither paid, nor furnished bank guarantee. The bank guarantee of the respondent No. 2 was renewed from time to in response to the said letter the petitioner on executor that he had been advised that it was not. 28. On behalf of the petitioner a challenge was made to the demand of the executor by means of letter dated 15th December, 1984, as against the petitioner to the tune of Rs. 5,95,677.42, while it was only Rs. l,75,000/ - plus Rs. 24,677.42 towards the maintenance of the road etc. as against the respondent no. 2. It was urged that the letter was issued on the same date and the exorbitant demand from the petitioner shows the bias and collusion of the executor with the respondent no. 2 and further the said demand was beyond the burden placed by his mother for receiving the said property and thus the executor went beyond his jurisdiction in making such demand. 2 and further the said demand was beyond the burden placed by his mother for receiving the said property and thus the executor went beyond his jurisdiction in making such demand. The argument was, under the Will the liability to be borne by the sons was to pay the debt of the testatrix, medical, testamentary and funeral expenses, cost of administration including state duty and the probate duty and as such the liability to be borne by the son was only to extent of the value of "Kailash" (such value to be determined by the executor). This matter is not in dispute. However it was argued, the executor though initially issued letters to both the sons to pay the debts which is to the tune of value of "Kailash" (which was determined by the executor to be Rs. 3,50,000/ - ).Thus demand from the two sons was to the tune of Rs. 1,75,00 each only. However, subsequently by means of aforesaid letter dated 15th December, 1984, not only demand has been increased more than what is payable by the petitioner under the Will, but discrimination between his and respondent No. 2 was made, shows bias of the executor as against the petitioner and collusion with the Lucknow Bench for a direction that the' sons had forfeited their right since they have not exercised their discretion. 29. This Court by means of judgment and order dated 18th August 1977, held that there is no outer limit of time for exercising the option by the sons so indicated in the Will and at no point of time sons refused to accept the properly known as Kailash, or they refused to discharge the liability relating to various items which have been fixed at Rs. 3,50,00/ - and thus the executors application for a direction that the property which was to vest in the sons should go the the daughters was rejected. After the said judgment again or 23rd May, 1978, another notice was given by the executor to the two sons as aforesaid for paying the protion of the amount by the two sons. When in spite of this no payments were made then the executor, respondent No. 1, made an application date 17th February, 1980, before the District Judge for accepting his resignation to further act as ah executor. When in spite of this no payments were made then the executor, respondent No. 1, made an application date 17th February, 1980, before the District Judge for accepting his resignation to further act as ah executor. However even this letter of resignation was contested and it is only on 29th July, 1984, this letter of the executor was rejected by this Court. It was on the basis of all the aforesaid facts, it was urged, in spite of offer of the executor since payment was not being made by the petitioner and further the fact that he was continuing to occupy the whole of Kailash resulting into damages to other legatees coupled with increase of liabilities the petitioner was communicated to pay by a letter dated 15th December, 1984, written by the executor wherein the aforesaid higher demand from the petitioner was made. The reason for this disparity of demand between the petitioner and the respondent No. 2 is sought to he explained by the executor in paragraph 20 of the counter affidavit. The stand of the executor is that since the petitioner did not pay the earlier demand and protracted the matter on wrong pretext and thus increased the liabilities referred to in paragraph 4(a) (i) including arrears of large amount of Income - Tax, Wealth Tax, which was arranged to be paid out of the moneys which were to go lo the other legatees. Thus, increased demand was made from him. 30. Learned counsel for the executor Sri V.B. Upadhya further urged that in view of the fact that under the Indian Succession Act the executor is treated to be the legal representative of the deceased, therefore, the liabilities paid by the executor are realisable from the beneficiaries, which are incurred during the course of the execution and the liabilities even fro the subsequent years from the date of dath of the testatrix be treated to be the liability of the testatrix and the same is realisable form the beneficiaries. The initial argument was that even. Assessments both under the Income - Tex Act and the Wealth Tax Act for the period subsequent to the date of death of the testatrix would be the assessments of the the testatrix as the executor could do all what the testatrix could have done had she been, alive. 31. The initial argument was that even. Assessments both under the Income - Tex Act and the Wealth Tax Act for the period subsequent to the date of death of the testatrix would be the assessments of the the testatrix as the executor could do all what the testatrix could have done had she been, alive. 31. Section 211 of the Indian Succession Act provides that the executor or the administrator of a deceased person is this legal representative for all purposes, and all the property of the deceased person vests in his as such. Section 323 provides that all debts would be paid equally and reteably by the executor and no creditor shall have right of priority over another. Section 306 on which strong reliance was placed on behalf of the executor provides that debts of every description must be paid out of any legacy. In the basis of this last section argument was raised that before the petitioner receives the legacy he must pay all the debts. The proposition could not be disported. The question is what are the "debts" which are to be paid before beneficiaries receive the legacy. 32. Section 319 provides that the executor shall collect the debts of the deceased at the time of his death. Apart from the said Chapter VII provides fro other expenses to be paid by the executor.Thus, the debts spoken hence must pertain to the deceased testatrix ad any liability subsequent to her death could not be treated to be debated of the deceased. Under section 336 even after assent of the executor the legacy takes effect from the date of the death of the testator. All the aforesaid sections make it abundantly clear that the executor acts as a legal representative of the deceased throughout and docs not acts which are necessary to be done by him under the Will and till he finally gives assent to the beneficiaries concerned he acts as a legal representative of the deceased. 33. Further argument was that there has been further assessments under the Wealth Tax Act and the Income Tax Act for the period subsequent to the period of the death of the testatrix and that payment being made by the executor it was incumbent of the petitioner to have paid the said amount before any assent could be given by the executor for the vesting of the legacies. Section 19 of the Wealth Tax Act provides for the tax of a deceased person to be paid by his legal representative and since the executor is the legal representative it is provided that he shall be liable to pay out of the the assets of the deceased to the extent to which the estate is capable of meeting the charge, the wealth tax assessed as payable by such person under this Act if he had not died. Sub - section (2) provides that where a person dies without having furnished a return the executors are treated to be the legal representative and do all acts what the deceased could have done. It is on account of this, an argument was raised that the executor must realise the amounts which have been paid by him and which were payable by the beneficeries of the Will. It is significant Section 19 - A provides that the net wealth of the estate of a deceased shall be chargeable to tax in the hands of the executor and the executor is to be treated as an individual under the said Act. Subsection (6) is significant wherein it is provided in computing the net wealth on any valuation date any assets of the estate distributed to the legates prior to that valuation date shall be excluded, but the assets so excluded shall to that extent be included in the net wealth of such legatee on that valuation date. This indicates that on the validation date the assets which came in the hands of the legatee is included in the wealth of such legatee and it is only the balance of the net wealth which is assessable as the estate of the deceased. The assessment of the deceased has to be only to the period till the date of his death. Consequently, the assessments of the subsequent years have to be assessments of such legatee, to whom the assets of the deceased is distributed. It may be since the executor did not finalise and could not give assent for vesting of he estate in favour of beneficiaries said estate for the purpose of assessment he is the legal representative and it is always open to him to proportion the liability of the beneficiary towards tax etc. which are paid for the proportionate amount of the assets coming in the hand of such beneficiaries. which are paid for the proportionate amount of the assets coming in the hand of such beneficiaries. However, the assessment for the period after testator death would always be assessment not of the deceased person but assessment of the legatees and could not be treated to be the debt of the deceased. 34. In this case, on behalf of the petitioner, it was sought to be show that even as per executors own showing only Rs. 6350.00/ - was assessed towards Wealth Tax after 1st January, 1978, out of the total liability shown at Rs. 7,95,354.84 p. It is not necessary for me to go into this question in the present application. Admittedly, the executor is entitled to realise all the debts of tire deceased as per the Will, namely all the debts of the deceased including medical, testamentary and funeral expenses and the costs of administration including estate duty and probate duty to the extent of value of "Kailash" which he has already fixed at Rs. 3,50,000/ - from bot the sons and maintenance of the privates road as has It been referred under the Will and once that is paid then the legatees, viz. the two sons would be said to have done all what to required under the said will to perform their part for the purpose of receiving "Kailash". From the aforesaid, it is clear that making of the demand by the executor from the petitioner alone of on amount to the extent of Rs. 5,95,677.42 p. was not justified. In case, some liabilities over and above has been paid by the executor on account of the assessment for the subsequent years towards Income Tax and Wealth Tax liability of any of the beneficiaries it is open for the executor to indicate specifically the said amount and realise the same from him in accordance with law. However, in the impugned letter dated 15th December 1984, there is no indication nor there is any proportionment as to how the said figure was arrived. Further, this figure can not include damages as alleged on account of continued possession of the whole of the "Kailash" by the petitioner since that if at all could be the dispute inter se between the two sons to which the executor is not concerned. Further, this figure can not include damages as alleged on account of continued possession of the whole of the "Kailash" by the petitioner since that if at all could be the dispute inter se between the two sons to which the executor is not concerned. The executor's duty is to meticulously execute all what is required under the Will to clear off the debts of the deceased. It is also not very clear as to what was the proportionate increase of the liabilities which the executor has to pay out of the assets which were to go to the sisters. The questions of damages to be paid by the beneficiaries concerned to the executor and assessment of the same by the executor himself could not be within his domain. It is for the party alleging loss to realise the same which is permissible to him under law. Further, if the executor has paid any tax or liability out of the assets of the deceased, which were not receivable by the beneficiaries concerned not of the deceased but of the beneficiary concerned then it would legitimate for the executor to demand such proportionate amount which is paid representing such legatee for the subsequent years if at all such legatee is bound to pay the same in accordance with law. It is true that in the present case, a delay was caused and the sons should have paid the liability to the extent of "Kailash" much earlier. However, this would not deviate from the basic principle that both the sons has lo pay their share of the debts and expenses mentioned in the Will equally. Admittedly, demand from the petitioner was not the same as against the respondent No. 2. 35. On behalf of the respondents, it was urged that the petitioner was not entitled to move the present petition under Section 302, Indian Succession Act, as it is barred by principles of res judicata since earlier this Court under Section 302 had already disposed of the similar matter, as aforesaid. It was further urged even it the issues were not decided earlier under section 11, C.P.C, what ought to have been raised if not raised would also be barred under the principle of constructive res judicata. In have gone through the judgment of this Court delivered earlier. It was further urged even it the issues were not decided earlier under section 11, C.P.C, what ought to have been raised if not raised would also be barred under the principle of constructive res judicata. In have gone through the judgment of this Court delivered earlier. The controversy raised in that petition was confined whether the executors were right that if the sons did not exercise the option any within certain time they disentitled themselves to the inheritance and the property would go to the daughters. The main ground for such a relied sought by the executor was that since they did not exercise their option within the reasonable time they lost their right. The court held that since there was no time limit expressed in the Will it would not be right to disentitle the sons on the account. The present controversy, if different than what was raised earlier and it would not be covered by the principles of res judicata. In view of this, the contention raised on behalf of the respondents that the present petition is barred by the principles of constructive res judicata cannot be accepted. 36. In view of the aforesaid, it is found that the respondent No. 2 has not violated the conditions imposed by the testatrix under paragraph 3 (b) has not disentitled himself to the benefit accrued to him under the Will and the question of petitioner alone receiving the properly to the extent of whole of "Kailash" does not arise. Further, the question whether in case the respondent No, 2 has disentitled himself to the half share of "Kailash" would vest in the petitioner alone or would go to the residue of the estate to be distributed amongst sisters also does not arise and the argument raised on behalf of the parties is not necessarily to be mentioned or decided. Further, the executors demand of Rs. 5,95,677.42 from the petitioner by virtue of letter dated 15tb December, 1984, seems not justified and in view of the findings and observations made above the executor shall issue a fresh letter making demand from the petitioner in accordance with law and in case the petitioner agrees with the said demand which is to be made by the executors now the executor shall give assent to the petitioner for the vesting of half share of "Kailash" in him. 37. 37. In view of the aforesaid the present application is allowed in part. The prayer of the petitioner for giving a direction to the executor to accept the sum of Rs. 3,50,000/ - from the petitioner towards the petitioner's liability to avail the settlement of entire premises "Kailash" is refused. The petitioner is only entitled to the half share in "Kailash" as per desire of the testatrix and he is entitled for the assent from the executor on this paying the fresh demand by the executor which has to became in the light of the observations made above. In the facts and circumstances of this case, the costs shall be borne by the parties. Certified copy of this judgment shall be given to the counsel for the parties within a week on payment of usual charged.