1. This is an appeal against the grant of probate to the respondents in civil suit No. 10-A of 1955 of the Court of the Additional District Judge, Khandwa.
2. The proceedings relate to the will of one Baburao Shastri who was retired District Excise Officer and had settled at Khandwa. The will is dated 31-3-1939. Baburao Shastri died on 21-4-1939 at Khandwa, leaving behind his widow Mst. Laxmibai (second wife), his mother Annapurnabai, and two daughters, Sushilabai and Kamalabai, through his first wife who had died long ago. By the will he left his estate to his widow Laxmibai as a full owner. She applied for grant of probate under the will in the year 1939 and the case was registered as civil suit No. 3 of 1939. A general citation was issued under Section 283 of the Indian Succession Act, 1925, and as none put in a caveat, probate was granted to her on 8-12-1939.
3. Laxmibai died in the year 1953 and is alleged to have left a will appointing the respondents as executors of her estate. The respondents have applied for grant of probate on the basis of her will and that case is still pending in the Court of the Additional District Judge, Khandwa.
4. On 15-11-1954, Sushilabai made an application under Section 263 of the Indian Succession Act for re-vocation of the probate granted to Laxmibai. The respondents opposed her application but it was allowed by the lower Court by order, dated 18-8-1955. Accordingly the proceedings were restored and an opportunity was given to the respondents to prove the will of Baburao Shastri in the presence of Sushilabai. After trial probate was granted to the respondents. Hence this appeal.
5. By the will of Baburao Shastri only his widow Laxmibai was appointed as the sole executor. The respondents do not claim to be executors by that will but by the will alleged to have been executed by Laxmibai. In this connection, Section 222(1) of the Indian Succession Act is pertinent and is reproduced below:
'222(1). Probate shall be granted only to an executor appointed by the will.'
It is clear from this provision that it is only to the executor appointed by the will that probate can be granted in respect of that will. In Nathu Rain v. Alliance Bank of Simla, Ltd., AIR 1929 Lah 546 (A), it was held that an executor appointed by the executor under a will is not the derivative executor of the-original testator and accordingly a probate of the will of the original, testator cannot be grafted to him. This was also the view in Parshotam Ram v. Kesho Das, AIR 1945 Lah 3 (BJ. To the similar effect are the observations of Fazl Ali J. (as he then was) in Mt. Phenki v. Mt. Manki, ILR 9 Pat 098 at p. 701 (AIR 1930 Pat 618 at p. 619) (C). Even an heir of the executor under a will has not the right to the grant of probate : see Sarat Chandra Banerjee v. Nani Mohan Banerjee, ILR 36 Gal 799 (D).
The case of Mithibtii v. Canji Kheraj, ILR 26 Bom 571 (E), which was relied upon by the learned counsel for the respondents is not applicable to the present case. There the second widow of the testator, who claimed probate on the death of the first widow in whose favour it was first granted, was also named as an executor in the will, and it was on that ground that she also was deemed to be an executor appointed by the will. Neither Sushilabai nor the respondents, therefore, can claim the grant of probate in respect of the will of Baburao Shastri. The same applies to Kamlabai, the other daughter of Baburao Shastri, who is also a party to these proceedings.
6. In the above view, the question is whetherprobate can only be claimed in respect of the will ofLaxmibai. That matter is pending and the partieswould be free to litigate their respective claims there.Of course the grant of probate in respect of the willof Laxmibai would involve the question of the validity of the will of Baburao Shastri. That matter, therefore, can also be litigated in those proceedings. Thepresent proceedings have, however, become infructu-ous and are accordingly quashed. Parties shall beartheir own costs in both the Courts.