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22. Mr. Manish Goyal, learned Senior Counsel assisted by Mr. Siddharth Singhal, learned counsel for plaintiff/decree holder contends that under the will dated 01.04.1993 executed by the testator namely Late Sahu Basheshwar Dayal, two persons namely Smt. Bina Gupta and Smt. Malti Mangla were appointed as executors of the will, apart from being legatees under the will. However, during pendency of suit, Smt. Malti Mangla died on 11.09.2001 whereas Smt. Bina Gupta died on 01.03.2002. Upon death of aforesaid executors, who were appointed under the will, substitution applications were filed. Surprisingly, substitution application pertaining to Smt. Bina Gupta was allowed vide order dated 02.09.2005 whereas substitution application in respect of Smt. Malti Mangala (since deceased) remained pending, till the disposal of the suit.

"1. This Appeal raises the issue as to whether a sole beneficiary under a will can seek substitution instead and in place of an executor who has died during the pendency of a testamentary proceeding. The Testamentary Suit for probate of the will of the testatrix is pending for over seven years; evidence is complete and the suit was ripe for final hearing when the sole executor died. The learned Single Judge allowed the Chamber Summons by the Respondent for substitution and granted the prayer for converting the proceeding formally into one for Letters of Administration with the will annexed. The Appellant contends that the remedy open to the Respondent is to file a fresh Petition for Letters of Administration with the will annexed and the probate proceedings which came to an end with the death of the executor cannot be continued. For the reasons which follow, we have concluded that the law is not what the Appellant contends it is. A purposive interpretation which safeguards litigants against a multiplicity of proceedings and the attendant delay and expense is in accordance with the intent and the letter of the Indian Succession Act, 1925.

14. The Supreme Court had occasion to consider a similar issue in Shambhu Prasad Agarwal & Ors. vs. Bhola Ram Agarwal.1 In that case the testatrix had by her will bequeathed her estate to a nephew. On the death of the testatrix the legatee filed a petition for probate. The legatee died during the pendency of the proceedings and on his death his heirs filed an application in the probate proceedings for substitution in place of the deceased legatee. Another application for amendment of the petition was filed by which it was prayed that instead of a probate, the legal heirs may be granted letters of administration. These applications having been dismissed and the order of dismissal having been confirmed in revision by the High Court an appeal was filed before the Supreme Court. The Supreme Court noted that the legatee, it was true should have applied for the issuance of letters of administration and not for probate. However, this would not debar his heirs from getting the probate petition amended. The Supreme Court ruled that the view of the trial Court in rejecting the applications on the ground that the probate petition filed by the legatee related to his personal right and hence no right accrued to the appellants for substitution in his place was incorrect. The judgment of the Supreme Court lays down that while it is true that where an executor dies his heirs cannot be substituted because the executor possesses a personal right, this is not applicable where the heirs of a legatee apply for issue of letters of administration. The Supreme Court noted that it could not be disputed that the heirs of the legatee could file a petition for the issuance of letters of administration. Having regard to the time that had elapsed, the interest of justice would require that the proceeding should come to an end as early as possible and the appeal should not be rejected on what was regarded as being a "highly technical ground".

15. The judgment of the Supreme Court is therefore authority for the principle that the right to seek probate of a will executed by a deceased testator is personal to the executor appointed under the will. Upon the death  of the executor the heirs of the executor cannot be substituted in his place.

However, this would not debar the legatee and upon the death of the legatee his heirs from seeking substitution.

16. The Court in a proceeding for probate, it is well settled, does not decide questions of title. The Court is in probate proceedings only concerned with the issue as to whether the document set forth has been duly executed by the testator; and whether the testator was at the time of the execution of the document in a sound and disposing state of mind. The testamentary court, does not determine questions of ownership of or title to the property but whether the testator has executed his testamentary instrument voluntarily and with a free will.