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4. Two sale deeds were executed by Parul Bala Das and Jayanti whereby 5 cottahs of land out of 7 cottahs purchased earlier by the testator in the `benami' of Parul Bala Das and Jayanti was sold on 10.10.1983. It is to be mentioned that these sale deeds were countersigned by Jogesh Chandra Das as also Samir Chandra Das. The remaining two cottahs of land was sold by Parul and Jayanti by sale deed dated 12.02.1988. The sale proceeds are alleged to have been used for running the Indian Oil Corporation Gas Dealership for Jayanti and Sashwati. On 17.07.1984 an application came to be made for probate by Samir Chandra Das and Parul Bala Das. However, during the pendency of the probate proceedings, Parul Bala Das expired on 18.01.1990. This probate application was supported by all excepting Bibhas Chandra Das, the respondent herein. Since the probate became contentious, the application for probate was refiled on 22.01.1986 and the proceedings were renumbered as Original Suit No. 6 of 1986.

5. As has been stated earlier, all the legatees supported the probate application. However, Bibhas Chandra Das opposed the same. During the pendency, as has already been stated, on 12.02.1988, Parul Bala Das along with her second daughter Jayanti had sold the remaining two cottahs approximately of the earlier mentioned land. On this, the appellant Samir Chandra Das had signed as a witness. Smt. Parul Bala Das died on 18.01.1990. The respondent herein opposed the grant of probate by filing a written statement dated 05.04.1990. The evidence was led and the Will was got proved.

14. On merits, it was the case of respondent herein that in the three sale deeds, two of which were executed before the death of the testator and one after his demise during the pendency of the probate proceedings the properties were claimed to be the self acquired properties of the widow and the second daughter. It was argued that, therefore, the widow who was an executor was claiming that this property never belonged to the testator. The further case was that since the surviving executor Samir Chandra Das had put his signatures as a witness to the sale deeds, he also must be deemed to have accepted the recitals in the sale deeds to the effect that it was a self acquired property of the widow and the second daughter thereby disputing the title of the testator.

15. The argument is absolutely incorrect, firstly, for the simple reason that at the time of first two sale deeds, even the testator had put his signatures as a witness and as he was alive on that day, the Will was irrelevant. Therefore, those two sale deeds will naturally go out of consideration. Probably realizing this, the High Court made a stray remark in the judgment to the effect that "one of it was executed during the pendency of the probate application". Now, if the earlier two sale deeds which were dated 10.10.1983 and were executed during the lifetime of the testator and he himself had acted as a witness, there was no question of any rival or hostile title being set up by Parul Bala and further by the present appellant who put his signatures as a witness along with his father, the testator on the sale deeds dated 10.10.1983. It cannot be presumed that there was any idea of setting up a hostile title. The remaining property which was sold on 12.02.1988 i.e. during the pendency of the probate application was admittedly a part of the aforementioned property, part of which was sold on 10.10.1983 by two sale deeds. Basically, on 10.10.1983, the Will had never become effective as the testator was alive. Therefore, the deduction of the High Court that Parul Bala Das and Samir Chandra Das had taken a stance against the testator is clearly faulty. On that day, this position was absolutely not available. This is apart from the fact that on that day, on those two sale deeds dated 10.10.1983, even the testator had signed as a witness. Insofar as the subsequent sale deed dated 12.02.1988 is concerned, also there will be no question of taking any hostile stance against the testator because the property which was sold was clearly given away in the Will in favour of Parul Bala Das and her daughters, and Parul Bala Das also was given the right to sell the property for the maintenance and marriage expenses of her two unmarried daughters. Therefore, at least on that day, when the sale deed was executed, Parul Bala Das and her two daughters had inherited the property under the Will, which they sold and they were undoubtedly the owners of the properties. We must, therefore, hold that the High Court erred in taking the stand that the executor had taken a hostile stance against the testator. Once this position on facts is obtained, there is no question of further considering the correctness of the probate holding that there was an "implied renunciation" by the appellant herein.