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(ii) Surviving testator is given life interest and upon his/her death the estate would be dealt with as per the provisions of the mutual Will.
(iii) Surviving testator has taken benefit under the mutual Will.

12. He submits both Mr. K. K. Birla and Y. B. Birla qua executors of two alleged prior wills have no caveatable interest in the proceedings for probate of one of the rival wills. The executors do not have any beneficial interest, without the same, no caveatable interest can be inferred. The status of executors in the nature of Administrator. The bequest under the Will is to vest in the legatees on and from the date of death of the testator. The assent to legacy by the executor only prefects the title of the legatee. Executor has no real interest in the estate. Even the legatees of the prior Will of 1982 have no right to lodge caveat. The other executors of the Will of 1982 have not lodged any caveat. In any event going by the submission of Mr. P.K. Roy learned senior counsel (now deceased) assent to legacy having been given in favour of the said deceased Lady in relation to the 1982 Will of M.P. Birla. Nothing is left by the executors so their interest if at all is no longer subsisting.

14. The testator names the executor in his will. Whether any of the persons named as executor will ultimately get appointed an executor depends on two contingent factors: (i) The named persons surviving the testator, because Will does not become operative until the death of testator; (ii) The named person is willing to act and accepts the office of the Executor. Therefore, he argues making of Executor in a will does not materialize into an appointment as Executor until and unless the testator dies and the Executor outlives him and accepts the office of Executor. Caveators are seeking to change the language of the will. The alleged will does not say that any of the four persons ceasing to exist. There is material difference between 'ceasing to exist' and 'ceasing to hold the office of executor'.

18. His client claims to be an executor under the Will dated 13th July 1982 by reason of appointment by nomination in terms of the above will. Originally the Lady by her will dated 13th July 1982 of the deceased, appointed her husband Madhav Prasad Birla since deceased, Ganga Prasad Birla, Pradip Kumar Khaitan and Kashi Nath Tapuria as executors of the said Will. Under the terms of the said Will in case of any of the executors' ceasing to be an executor, the survivor executors were empowered to fill up the vacancy by nomination. Husband of the deceased, M. P. Birla died on 30th July 1990 and thus he ceased to be an executor. On or about 25th August 2004 the survivor executors have by a deed appointed his client B. K. Birla as an executor. His client has thus caveatable interest in the capacity of the Executor of the said Will on two fold basis : (a) on the basis of doctrine of mutual Wills (ii) As Executor of an earlier rival will. He says Lady's Will dated 13th July 1982 was executed in terms of agreement with her husband not to revoke the same and this could not dispose of assets and properties.

68. The legatee cannot derive benefit from the Will unless assent to legacy, is given. The executor's duty has been specified in Chapter VII. Similarly his/her power As specified in Chapter VI of the Indian Succession Act 1925. In this case going by the apparent reading of the rival earlier Will undisputed executors are also the trustees in real sense for the benefit of the member of public for charitable purpose, of the estate left behind by the said deceased Lady. In terms of this Will they have been given wide discretion and right to choose the class and nature of the beneficiaries. This right, title and interest had indeed been vested unto the Lady along with other surviving trustees so far the will of M.P. Birla is concerned. After death of the Lady surviving executors' right are there. As far as the deceased Lady's Will is concerned executors appointed by the Lady and they being alive have above right undisputedly. I think applying legal principle as above surviving executors of prior Will of the Lady have possible real interest in the estate. The Courts have already recognized the legatee's and/or his assignee's interest of prior rival Will as having locus to contest grant (see (1894) ILR 17 Mad 373, AIR 1919 Cal 1012 and respectively). All these rights will be defeated if not displaced, if probate to last instrument is granted. Accordingly I hold this interest of G. P. Birla being one of the executors above is sufficient to maintain his caveat in relation probate proceedings of Lady's Will. So far K.K. Birla is concerned he is not one of the executors of the Lady's Will his claim is based on executorship of the mutual Will of her husband. His interest is not at all affected by the Will of the Lady rather remain intact and can be enforced against Lodha.