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"222. Probate only to appointed executor.-

(1) Probate shall be granted only to an executor appointed by the will.

(2) The appointment may be expressed or by necessary implication."

37. It was not the case of respondent No.1 that he was appointed as Executor under the Will. Section 232 of the Act which deals with grant of administration of universal or residuary legatees reads as follows:

"232. Grant of administration of universal or residuary legatees. −When−

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".

38. Interpreting the above provisions of Sections 232 and 222 of the Act, the learned Single Judge of this Court in para 7 (ii) of the judgment in Laxman vs. Basavanni and another16 held as follows:

"(ii) A conjoint reading of Sections 222 and 232 of the Act, makes it abundantly clear that probate could be granted only to an executor appointed under the Will either expressly or by implication. All other persons who claim under the Will as legatees or beneficiaries including an universal legatee or residuary legatee are entitled only for grant of Letters of Administration with Will annexed. A universal legatee is one to whom the whole of the estate of the testator is disposed under the Will; whereas a residuary legatee is a person to whom the surplus or residuary of the property is bequeathed under the Will. But in the absence of any express or implied appointment of a person as executor, merely on the basis of the bequests made in their favour as legatees or beneficiaries, they do not derive a right to grant of probate. From the above provisions, it follows that in order to entitle for grant of probate, the Will must contain expressly or by implication the name of the executor, otherwise no probate can be granted to any person. This legal position is now well settled."

40. The above provision shows that in his petition which should have been for letters of administration as per Section 278(1)(b) of the Act, the petitioner ought to have distinctly stated and written the names of the family members or other relatives of the deceased and their respective residences.

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NC: 2023:KHC:26756-DB

41. Section 235 of the Act states that letters of administration are not to be granted to any legatee other than a universal or residuary legatee until a citation has been issued and published in the manner mentioned in the provisions of the said Act calling upon the next-of-kin to accept or refuse the letters of administration.