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     Chandka                                 3                 A-1009-10-JUDGMENT


              Facts.

2. The Appellant is the original Defendant in a Testamentary Suit instituted by the sole executor named under a will alleged to have been executed by the deceased testatrix. The Respondent is the sole beneficiary under the will. The executor had filed a Petition for probate which was converted into a Testamentary Suit upon a contest. The trial commenced and the evidence of seven witnesses was recorded. Evidence is complete and the suit was to be heard. At this stage the executor died. On his death the Respondent took out a Chamber Summons for substitution in place of the sole executor and for seeking the grant of letters of administration with the will annexed, instead of a probate. The application was allowed, following which an Appeal has been filed.

(emphasis supplied) Section 232 deals with three identified situations. The first is where no executor has been named in the will executed by the deceased. The second is where though an executor has been appointed by the deceased in the will the executor (i) is legally incapable; or (ii) refuses to act; or (iii) has died before the testator; or (iv) had died before he has proved the will. The third situation deals with a case where the executor after having proved the will has died but before the estate of the deceased has been administered. In either of these situations Section 232 provides that (i) a universal or a residuary legatee may be admitted to prove the will; and (ii) letters of administration with the will annexed may be granted to him of the whole Chandka 10 A-1009-10-JUDGMENT estate or of such part of the estate as remains to be administered. The law does not postulate a vacuum in the administration of the estate of a deceased testator. Hence in the several situations to which a reference has been made in Section 232, the Act contemplates that the universal or a residuary legatee may be admitted to prove the will with a consequential issuance of letters of administration with the will annexed. The second set of eventualities to which a reference has been made earlier contemplates a situation where the executor under a will of the deceased has died before the will was proved. The death of the testator before the will is proved may occur either before the presentation of a Petition for probate or, for that matter, even after the presentation of a Petition but before probate has actually been granted upon the will being proved. Whether as a matter of fact the death of the executor takes place before or after the institution of a Petition for probate, the death in such a case is prior to the will being proved. Hence in both the situations, a residuary legatee is entitled in law to be admitted to prove the will and to the issuance of letters of administration.

11. In the judgment of a Division Bench of this Court in Thrity Sam Shroff vs. Shiraz Byramji Anklesaria & Anr, (supra), the will executed by a testatrix in 1989 was sought to be administered in a Petition filed in Chandka 12 A-1009-10-JUDGMENT 1993. Five executors appointed under the will had died. The petition had been amended after the death of the first two executors. However, no steps were taken after the death of the third executor. The applicant had not sought a continuation of the suit by substitution of herself in place of the deceased executors but had applied for various reliefs in the administration of the estate of the deceased. The Division Bench held that probate proceedings are essentially at the instance of the executors named in the will and can survive until the executors survive. If the sole executor dies or upon the death of all the executors named in the will no question would arise of the proceeding being kept alive as there would be no occasion to grant a probate. The Division Bench was of the view that such a procedure would die a natural death as a consequence of the non survival of any executor and the applicability of the provisions of Order XXII would not arise. The Division Bench relied interalia upon the judgment of the Calcutta High Court in Sarat Chandra Banerjee vs. Nani Mohan Banerjee1 That was a case where pending the hearing of a contested application for probate by a sole executor the executor had died. His widow as legal representative applied that her name be substituted for the deceased executor and the petition for probate be amended by substituting a prayer for the grant of letters of administration. The application was rejected on the ground that the right to sue did not survive and the suit stood abated. In Hari Bhusan 1 1909 Vol. III Indian Cases 995 (Calcutta) Chandka 13 A-1009-10-JUDGMENT Datta vs. Manmatha Nath Datta & Ors., a residuary legatee under a will had applied for letters of administration with a copy of the will annexed. During the pendency of the proceedings the legatee died and his son applied for being substituted in the place of the deceased father and to be granted letters of administration. The Calcutta High Court held that the right of the legatee to obtain a grant was personal and would not devolve on his heir. In Manekji Manchersha Javeri vs. Phiroze Boman Javeri,2, a learned Single Judge of this Court followed the decision of Harington J. of the Calcutta High Court in Sarat Chandra Banerjee (supra) and held that in the case of an application for probate no question of a right to sue arises at all. The learned Single Judge was of the view that when a petition is filed on the testamentary side for the grant of representation it is not a suit in any sense of the word for, if it remains non contentious. It does not even assume the form of a suit. Though Section 295 provides that the proceedings take as nearly as may be a form of the regular suit, that does not really render the proceedings a suit in the real sense of the term and no question would arise of the right to sue surviving on the death of the executor even though the executor had died after the testamentary proceedings had become contentious. These decisions were followed in the judgment of the Division Bench of this Court in Thrity Sam Shroff vs. Shiraz Byramji 1 1919 (Vol.II) Indian Cases 76 (Calcutta) 2 1970 Mh.L.J. 324 Chandka 14 A-1009-10-JUDGMENT Anklesaria & Anr., where the Court came to the conclusion that the proceedings for the grant of a probate under Section 295 are not proceedings in a suit. Following this, the Division Bench held that an application of the nature that was made before the learned Single Judge was not maintainable.

17. Under the Indian Succession Act, 1925 the effect of the grant of letters of administration is to entitle the administrator to all rights belonging to the intestate as effectually as if the administration had been granted at the moment after his death. Under the Act, probate of a will, when granted establishes the will from the death of the testator and renders valid intermediate acts of the executor as such. Where an executor is named in the will probate can be granted only to an executor named in the will. On the other hand where the will does not appoint an executor a universal or Chandka 20 A-1009-10-JUDGMENT residuary legatee may be admitted to prove the will. The right of the beneficiary to seek letters of administration continues to survive notwithstanding the death of the testator. Where an executor resigns or refuses to act as such the beneficiary named under the will can assert his right to seek letters of administration. In a situation where the executor has, even after the presentation of a petition, failed to act it is open to the beneficiary or legatee under the will to seek the issuance of letters of administration. In all these situations, there is no conceivable reason as to why the beneficiary or legatee should be relegated to file independent proceedings. The executor does not derive any interest in the property which forms the subject matter of the bequest unless he is also a beneficiary under a will.