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8. The executor (or administrator) of a deceased is his legal representative. The property of the deceased vests in him as such. 4 No right as an executor is established unless probate is granted. 5 Probate can only be granted to an executor named as such in the Will, and no one else, though the appointment may be express or implied.6 Probate, when granted, establishes the Will from the death 2 See: In the goods of Manick Lal Seal, ILR (1908) 35 Cal 156;

Venkataramier v A Govindarayalier, AIR 1926 Mad 605; In Re Lakhshmi Shanker & Anr, AIR 1941 Oudh 293 (FB) (approving Venkataramier); Samir Chandra Das v Bibhas Chandra Das & Anr, (2010) 6 SCC 432, approving Manick Lal Seal and Venkataramier, but not noticing Lakhshmi Shanker (Oudh FB); Reena Sanjay Minz & Anr v Jigna Jay Kantawala, order dated 9th June 2015 in Notice of Motion No. 64 of 2014 in Testamentary Suit No. 15 of 2007, following Lakhshmi Shanker and Samir Chandra Das -- appeal dismissed: Reena Sanjay Minz & Ors v Jigna Jay Kantawala, 2016 (4) Bom CR 642; Krishnanand Arvind Velinker v Kamalini Arvind Velinker & Ors, Order dated 19th October 2015 in Chamber Summons No. 95 of 2015 in Testamentary Suit No. 89 of 2014; following Lakhshmi Shanker and Samir Chandra Das; 3 ISA, Section 230.

3rd May 2018 Vasant Narayan Sardal v Ashita Tham & Ors 929-NMT74-15.DOC and known as the Norman Guest House. Those Consent Terms of 22nd November 2005 in the Testamentary Suit, on which an order was made on 22nd February 2006, and in the Administration Suit, on which an order was made on 24th April 2006, are themselves (i.e. the Consent Terms) of very dubious legality and tenability. In this order I propose to set them aside both in the Testamentary Suit and in the Administration Suit.

23. The reason why I have at all gone through the question of legality of the transactions and the Consent Terms is because of the relief sought in Notice of Motion (L) No. 85 of 2018. Here, the Consent Terms filed in Testamentary Suit No. 14 of 2004 are sought to be set aside.

24. For the reasons that I have set out above, Notice of Motion (L) No. 85 of 2018 will have to be allowed. Those Consent Terms were, on the face of it, not such as could have been taken in a Testamentary Suit pending probate. They were directly contrary to the terms of the Will. Very often even probate proceedings are compromised but where in that compromise probate is accepted what then follows is a family arrangement not inconsistent with the grant or with the title that has passed through grant. In the present case, there was no possibility of any such family arrangement or compromise following on the grant of probate because that probate completely excluded the surviving members of the family.8

25. Thus, the Consent Terms in Testamentary Suit No. 14 of 2004 are set aside, and the order of 22nd February 2006 is recalled. Testamentary Suit No. 14 of 2004 is restored to file along with Caveats filed therein. I will separately frame issues and pass directions in the Testamentary Suit. Notice of Motion (L) No. 85 of 2018 is made absolute. No costs.

8 Chandrabhai K Bhoir & Ors v Krishna Arjun Bhoir & Ors, (2009) 2 SCC

315. 3rd May 2018 Vasant Narayan Sardal v Ashita Tham & Ors 929-NMT74-15.DOC