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17. Civil Misc. Application No. 45175 of 2008 filed by Chandra Mohan Gupta has been rendered infructuous, on account of death of applicant-Chandra Mohan Gupta. Accordingly aforesaid application stands dismissed as infructuous.

18. Civil Misc. Application No. 264594 of 2010 has been filed by Sanjay Gupta S/o Chandra Mohan Gupta and Smt. Bina Gupta praying therein that he be appointed as an executor of the will. This application has not been opposed by Pratap Singh Mangla, Kamla Mangla, Punit Mangla, Kamini Rayjada and Smt. Kalpna Nagaliya (legal and natural heirs and representatives of Smt. Malti Mangala) inasmuch as they have accorded their consent to the appointment of Sanjay Gupta as an executor of the will by filing Civil Misc. Application No. 8 of 2021. Apart from above, Vivek Gupta S/o Chandra Mohan Gupta and Smt. Bina Gupta and also brother of Sanjay Gupta has also given his consent for appointment of Sanjay Gupta as an executor of the will by filing Civil Misc. Application No. 7 of 2021. Thus all interested parties have given their consent for appointment of Sanjay Gupta as an executor of the will.

27. Learned Senior Counsel further submits that this Court vide judgement and order dated 10.11.2006 has allowed the substitution application in respect of Smt. Malti Mangla and further observed that parties may file appropriate application for appointment of an executor of the will alongwith his/her consent. He, therefore, contends that in view of above, no exception to the same can be taken. Application filed by Sanjay Gupta seeking appointment of himself as an executor of the will is in conformity with the judgement and order dated 01.11.2016. As long as judgement and order dated 01.11.2006 stands, defendants/judgement debtors have no right to oppose the same. Legal and natural heirs and representative of Smt. Malti Mangla are already on record. They have neither come forward for appointment as an executor of the will nor they have filed any objection to the application dated 04.09.2010 bearing no. 264599 of 2010 filed by Sanjay Gupta seeking his appointment as an executor of the will pursuant to the judgement and order dated 10.11.2006. To the contrary, they have given their consent for appointment of Sanjay Gupta as an executor of the will. Similarly Vivek Gupta brother of Sanjay Gupta has also given his consent in favour of appellant Sanjay Gupta. As such, application filed by Sanjay Gupta remains unopposed and therefor liable to be allowed.

" 233. Right to administration of representative of deceased residuary legatees.--When a residuary legatee who has a beneficial interest survives the testator, but dies before the estate has been fully administered, his representative has the same right to administration with the Will annexed as such residuary legatee."

33. The genuineness of the will dated 01.04.1993 and the competence of the executors appointed under the will has already been examined and dealt with by this Court vide judgement and order dated 01.11.2006. The executors appointed under the will are also a legatees under the will. Once, the executors appointed under the will, are also the legatee under the will, therefore, upon their death their leagal and natural heirs will have a right to claim appointment as an executor of the will. According to learned Senior Counsel appearing for plaintiffs/decree holders, the issue, therefore, is a residuary issue and can be dealt with by this Court in terms of Section 233 of Indian Succession Act.

(c) the executor dies after having proved the Will, but before he has administered all the estate of the deceased, an 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."(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 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.