Somnath Iyer, J.
1. This appeal arises out of an application made by one Nanjappa to the District Judge, Mysore, for the grant of a probate or letters of administration to him in respect of a will alleged to have been executed by one Badami Nanjappa on July 2, 1946. Badami Nanjappa who was a resident of the City of Mysore died on October 9, 1950. He had three wives and defendant 1 was the only wife who survived him. His two other wives had predeceased him.
His first wife Channamma who was one of those wives who predeceased him, left a daughter, defendant 7. His second wife Subbamma had nochildren. Defendant 1 Deveeramma is his third wife. By his third wife Badami Nanjappa had seven children. Two of them were sons and the other five were daughters. Out of his two sous, defendant 2 is the only surviving son. One of his daughters Neelamma died and the remaining four daughters are alive today.
2. Defendant 2 is Basavaraju, son of Badam Nanjappa by his third wife. Defendants 3 to 6 ere his daughters by her.
3. After the death of Badami Nanjappa, the plaintiff Nanjappa who made an application for the grant of a probate or letters of administration, applied for a copy of the will said to have been executed by Badami Nanjappa on the very next day after his death. Exhibit L is a certified copy of the registered will which was granted to him. The plaintiff's case was that the original will was in the custody of defendant 1 who refused to hand over to him that will, after Badami Nanjappa died.
4. The plaintiff claimed to be an executor, either expressly appointed or appointed by necessary implication, and therefore competent to ask for the grant of a probate. The plaintiff made an application in the alternative for the grant of letters of administration. But it is clear that he was not entitled to the grant of letters of administration to him since he was not either a universal legatee or a residuary legatee who alone could apply for such letters of administration under the provisions of Section 232 of the Indian Succession Act.
5. The learned District Judge very strangely made an order directing the grant of either a probate or letters of administration to the plaintiff. He was of the view that the will which, according to the plaintiff, had been executed by Badami Nanjappa on July 2, 1946, had been proved.
6. In this appeal which is preferred by defendants 1, 2, 5 and 6, the contention of Mr. Krishnamurthy, their learned Advocate, is that the plaintiff was not entitled even to the grant of a probate. He also contended that it was not established by sufficiently trustworthy evidence that Badami Nanjappa executed the original of Exhibit L.
7. It is not, in our opinion, necessary to go into the question as to whether Badami Nanjappa during his life time executed a will, the certified copy of which is Exhibit L. In our opinion this appeal has to succeed on the short ground that since the plaintiff who made an application for the grant of a probate to him has not established that he is either an executor expressly appointed or an executor by necessary implication, he was not entitled to ask for the grant of any probate to him.
Section 222 of the Indian Succession Act empowers the grant of a probate only to an executor appointed by the will, although the appointment may be an expressed appointment or by necessary implication. The only portion in Exhibit L which contains a reference to the plaintiff is a postscript to that will which is found at the very end of that document. It appears from a perusal of Exhibit L that after the completion of the will Badami Nanjappa added a postscript to it which was written by one Gundurao. That postscript reads:-
'During my lifetime, I shall myself conduct the charitable acts and the entire management of otherfamily affairs, which are to be done by me. After my death, my family members should conduct all the affairs under the supervision of the Government as stated above and M. S. Nanjappa son of my uncle N. R. Sangappa, residing at Mandi Mohalla, of said Mysore shall supervise so that everything takes place properly. To this effect is this will executed by me.'
M. S. Nanjappa referred to in this postscript is the plaintiff.
8. We have perused Exhibit L which purports to be a copy of the original will executed by Badami Nanjappa. The bequests made under that document are to our minds not very clear. We have felt great difficulty in understanding the nature of the bequests made under that document. It appears to us, however, that the dispositions made under that document fall under three categories. The first category refers to the dispositions made for clarity. The second category of dispositions consists of various bequests made to his own wife, daughters and son. The third part of the disposition consists of an absolute bequest to Basva-raju who is defendant 2, of a residential house together with a row of shops as they are called.
9. But what is of the greatest significance is that throughout Exhibit L, the persons who are entrusted with the administration of the charities created by Badami Nanjappa in the original of Exhibit L are the members of his family, or as we understand the document their descendants. They are the persons who are entrusted with the duty of carrying out and giving effect to the various bequests made under the will.
10. Normally, the original of Exhibit L when properly understood could be regarded as a will under which Badami Nanjappa appointed the members of his own family as the persons who were entrusted with the duties of administering his estate and of administering the charities referred to therein. But the plaintiff depended in support of his contention that he was an executor under the will on the postscript to which we have just now referred.
11. It appears to us that that postscript does not establish the contention of the plaintiff that he was an executor appointed by the will either expressly or by necessary implication. Even that postscript makes it very clear that after the death of Badami Nainjappa the members of his own family should 'conduct all the affairs.' We have no doubt in our minds that what the family members were directed to do under the will was to give effect to the dispositions made under the will. They were the persons who were entitled to receive what was due to the estate and to pay what had to be paid out of its income.
It may be, as the postscript itself states, that the administration of the charities under the will from the estate belonging to Badami Nanjappa had to be carried out under the supervision of the Government as also under the supervision of the plaintiff. But it does not appear to us that either the Government or Nanjappa was entrusted with such duties as would make them executors under the will. Now it is clear that neither the Government nor the plaintiff were expressly appointed as executors and even when we proceed to Consider whe-ther they were appointed as such executors by necessary implication, it appears to us that we cannot regard them as executors according to the tenor.
12. It is too long and too well settled that the Courts should always lean against regarding a person as having been appointed an executor by necessary implication, An executor by necessary implication or according to the tenor must have the right to receive, for the estate what is due to it and to pay what is due from it. That, appears to us to be the correct test to be employed to deter mine whether a person is an executor even according to the tenor. So tested, it is impossible to hold that the plaintiff was One.
13. It is thus clear that the plaintiff was neither entitled to the grant of a probate nor to the letters of administration. This appeal therefore, succeeds and in reversal of the decision of the Court below, the application presented by the plaintiff for the grant to him of the letters of administration or probate in respect of the original of Exhibit L is dismissed. In the view that we take, it is unnecessary for us to go into the question whether the plaintiff has established the genuineness of Exhibit L, and we refrain from expressing any opinion on that question. Nor do we express any opinion on the question as to whether the defendants have established their contention that even if the original of Ext. L was executed by Badami Nanjappa that will was subsequently revoked by him during his life time. All the other contentions raised by the parties are left open to be decided at the appropriate stage, if necessary.
14. In the circumstances of the case we direct that each party shall bear his or her own costs in this Court as well as in the Court below.
15. I agree.
16. Appeal allowed.