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4. Both MPB and PDB are said to have executed mutual wills on identical terms on or about 10th May, 1981 bequeathing his/her respective estate(s) barring certain specific legacies to the other and on the death of the survivor to the `charities' to be nominated by the executors. However, the said wills were revoked and another set of mutual wills were executed on 13th July, 1982 in terms whereof, four executors were appointed in each set of Will (1982 Will).

The executors nominated in MPB's Will were :-

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(g) An executor under a Will would not remain an executor upon his ceasing to hold the said office or by a renouncement or his removal or death, but, such contingencies having not taken place, no purported vacancy had arisen, and thus, the question of filling up the same does not arise.
(h) As mutual Wills are not rival Wills, persons claiming as executors of the Will of MPB did not derive any caveatable interest, as they remained unaffected by subsequent Wills.

44. MPB by his Will appointed four executors including his wife. By reason thereof, he bequeathed all his properties to his wife and only in the event of his wife predeceasing him, the executors were to make over and/ or donate and/or settle for public charitable purposes the estate as they might think fit and proper.

Clause 3 of the 1982 Will reads as under:

"3. Subject to the provisions of Clause 2 above, the Executors will have power to donate the estate to one or more public charitable trusts, societies or institutions and/ or establish one or more public charitable trusts, societies or institutions for public charitable objects as they may think fit."

AS EXECUTORS OF 1982 WILL

146. BKB claims to have a ceveatable interest as an executor of the 1982 Will of PDB. A deed of appointment was executed on 25th August, 2004 to fill up a purported vacancy caused by the death of MPB. So far as the claim of BKB and GPB are concerned, the same are required to be dealt with separately.

147. MPB was an executor under the 1982 Will of PDB. He expired in 1990. The deed of appointment was executed on 25th August, 2004. Both the learned Single Judge as also the Division Bench of the High Court opined that MPB never ceased to be the executor. The High Court noticed a term of purported 1982 Will, which reads as under :-