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2. On Jan. 29, 1970. the respondent made the application giving rise to this appeal in the Court of the District Judge, Kaira, stating, inter aha, that the document annexed to the application was the last will and testament of Dahbhai Nanabhai Patel and that the respondent was the executor named in the said will. The respondent prayed that the probate of the will might be granted to him in the interest of justice. The appellants were shown as opponents in the cause title of the said application. The appellants appeared and filed their written statement, Ex. 14. In para 4. of the written n statement, the appellants specifically contended that the respondent was not the executor appointed under the will. In view of the aforesaid dispute, the respondent made an application, Ex. 53, for amendment and sought permission to amend the application by insertion of an averment to the effect that he was "the sole legatee of all the properties under the will" and an alternative prayer for the grant of Letters of Administration with the will annexed. The application was duly granted. The trial Court raised two principal 8 issues; (1) whether the respondent proved valid execution and attestation of the will and (2) whether the, respond, Proved that he was the executor burned in the will. The parties led evidence in support of their rival cases. The' trial Court answered both the aforesaid issues in favor of the respondent. It held that the execution of the will was duly proved and that on a fair and comprehensive reading of the will, it was clear that the respondent was the executor of the will. The trial Court, therefore, made an order directing the issuance of a probate with the copy of the will annexed in favour of the respondent on usual terms.

M. K. Shah, J. held that: (1) the respondent was appointed as an executor under the will by necessary implication and that such appointment was valid, having regard to the provisions of Section 222 of the Act, (2) though the respondent was not specifically named as an executor, he was entitled to the probate having regard to the fact that he was, in the eye of law, an executor appointed under the will, (3) the statement made in the application that the respondent was the executor under the will was, therefore, correct and the provisions of See. 276 (1) (e) were duly complied with, t4) in any event; Section 276(1)(e) was a procedural section and it cannot override the provisions of Section 222 which was subtantive provision and since an executor whether appointed express sly '. or by necessary implication was entitleded to the grant. of probate, the application of the respondent could not have been rejected on the ground that the procedural requirements were not satisfied (5) the due execution of the will in a sound and disposing state of mind was proved and (6) the trial Court was justified in granting the probate to the respondent.

(c) the executor dies after having proved the will. but before he has administered all the estate of the deceased, a universal or a residuary legatee may be admitted to prove the will, and letters of administration with the will annexed may be granted to him of the whole estate, or of so much thereof as may be unadministered.11

6. On a combined reading of these sections. it would appear that probate can be granted only to an executor appointed by the will and that the appointment~ may be in express terms or it may be inferred by necessary implication. In cases where (1) a will has been made but an executor has not been appointed or (2) an executor is appointed who is legally incapable or refuses to act or who has died before the testator or before he has Proved the will, or (3) the executor dies after having proved the will, but before he has administered all the estate of the deceased, a universal or a residuary legatee may be admitted to prove the will and letters of administration with the will annexed may be granted to him of the whole estate, or of so much thereof as May be unadministered. It is clear, therefore, that the respondent would be entitled to the probate of the will only if he shows that he was the executor appointed by the will, either expressly or by necessary implication, and that if he fails to prove such appointment, all that he may be entitled to is the grant of letters of administration with the will annexed, provided he shows that he is a universal or a residuary legatee and he proves the will. On the question of the proof of the will, the dispute does not any longer survive herein. The short question which. therefore. re.. quires consideration is whether the respondent is the executor appointed by the will. either expressly or by necessary implication, because then only the grant of probate to him can be held to be legally valid,

10. In the view which we are taking, we find support from the decision in Ex parte Vittal Doss, (1892) ILR 15 Mad 360. In that case, the will which was propounded constituted the persons named therein as "the heirs to my outstandings, debts my house, Takoorjee Seva (or idols), utensils, & Co., and my property whatever it may bell, The heirs applied for probate of the will on the ground that they were appointed executors by implication. It was held that the language used in the will was such that it could not be said that anyone was constructively appointed executor and that, therefore, the application for Probate was not maintainable, Though -each case will depend upon its own facts and the question a.1; to .vIiether any person is appointed as an executor by necessary implication will have to be answered in the light of the recitals contained in the will, the decision in Ex Parte Vittal Doss's case is helpful because there is a resemblance in the manner of disposition of the properties under will in question and the will in that case,