S.K. Mal Lodha, J.
1. This appeal by Smt. Govindi Bai has been filed under Section 299 of the Indian Succession Act (No. XXXIX of 1925) (here in after referred to as 'the Act') against the order dated January 31, 1972 of the District Judge, Pratapgarh, by which, he allowed the petition of respondent No. 1 Purshottam Lal for the grant of probate in respect of the will dated August 17, 1934 which was registered on August 20, 1934.
2. Madanlal (deceased) executed a will in favour of Purshottamlal (petitioner) on August 19, 1934. The will was got registered on August 20, 1934. Madanlal died on August 17, 1944. It was averred by the petitioner-respondent No. 1 that the probate of the will dated August 17, 1934 may be granted to him as he wants to obtain the possession of the house left by the deceased testator Madanlal. The house is situate in Mohalla Gopalganj, Partapgarh. Smt. Govindi Bai (appellant) and Smt. Sunder Devi contested the petition. It was alleged by them that no will was executed by Madanlal in favour of the petitioner. The house which was bequeathed to the petitioner, remained in possession of Smt. Dolatbai until October, 1966. After the death of Smt. Dolatbai, the house came in possession of Smt. Govindi Bai and since then, she has been in continuous possession of it. Smt. Dolat Bai is said to have executed a will in favour of Smt. Govindi Bai and it was in pursuance of that will that she came in possession of the house. The learned District Judge framed two'issues inclusive of the relief, which, when translated into English, read as under:
(1) Whether Madanlal Mukhiya had executed a will in favour of Purshottom Lal on August 17, 1934 and got in registered?
The learned District Judge, after considering the evidence of the parties, held that it was proved that Madanlal executed the will(sic) (Ex. 1) in favour of Purshottam Lai and that it was his last will. It was also found by him that at the time of the execution of the will, the deceased testator was of sound mind and knew the consequences of his act. He, therefore granted probate to the petitioner in respect of the will dated August 17, 1934.
3. Aggrieved, Smt. Govindi Bai has filed this appeal.
4. Appellant Smt. Govindi Bai died on May 1, 1980 and respondent No. 2 Smt. Sunder Bai has also died. Smt. Madhu BaJa was impleaded as appellant in place of Smt. Govindi Bai. The name of respondent No. 2 Sunder Devi was struck off vide court's order dated April 12, 1973. The other respondents besides the petitioner Purshottam Lai are Smt. Anasuiya Bai, Smt. Hem Kanwar and Smt. Nirmala Bai.
5. I have heard Mr. P C. Mathur for the appellant and Mr. I.C. Maloo for the respondent No. 1 Purshottam Lai and have also gone through the record.
6. The first argument that was raised by the learned Counsel for the appellant is that in view of the provisions contained in Section 222 of the Act, probate could not have been granted to the petitioner, for, no executor was appointed by the will. The certified copy of the will has been placed on record as Ex. 1. Permission was accorded by the learned-District Judge to lead secondary evidence in respect of the will. A perusal of the certified copy of the will shows that no executor was appointed by the deceased testator Madanlal in his will. According to Section 222 of the Act, probate can only be granted to an executor appointed by the will and the appointment may be expressed or by necessary implication. There is nothing in the will to show that even by necessary implication, any appointment of the executor was made. Learned Counsel for the petitioner-respondent was unable to support the order of the District Judge granting probate on the will dated August 17, 1934. He submitted that the case may be remaneded to the learned District Judge, Pratapgarh for giving him leave to amend the petition so as to convert it into a petition for grant of letters of administration with a copy of the will annexed.
7. Section 232 of the Act is as follows:
232. Grant of letter of administration to universal or residuary legatees
(a) The deceased has made a will, but has not appointed an executor, or
(b) The deceased has appointed an executor who is legally incapable or refuses to act, or who has died before the testator or before he has proved the will, or
(c) The executor died after having proved the will, but before he has administered all the estate of the deceased, 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.
8. Lado Rami Gurtu v. Sibhag Rani AIR 1927 Lah 1927 and Bhagmal v. Malik Singh AIR 1931 Lah 229 were considered by a learned single Judge of this Court in Rajendra Kumar v. Hardayal 1950 RLW 171.
9. In Bhagmal's case AIR 1931 Lah 229 it was held that an application for probate can be allowed to be amended into one for letters of administration even on appeal. The learned Judge in Rajendra Kumar's case 1950 RLW 171 granted leave to amend the petition and remanded the case to the District Judge for allowing the petitioner to amend the petition. Learned Counsel for the appellant invited my attention to Bihrai Lal v. Ganga Bai AIR 1917 Pat 209. It was suggested in that case in the course of argument that the appellant should be allowed to amend his application and convert it into application for letters of administration with a copy of the will annexed. It was observed as under:
In my opinion be ought not to he allowed to do this. Six persons are expressly nominated as executors and if the appellant wishes to compel them to take out probate or to renounce probate, the procedure is prescribed by the Probate Act and he may make an application to the Court below accordingly, if he is so advised. I would dismiss this appeal with costs....
The next authority, to which my attention was drawn is Edward Waston v. Mrs. Theresa Chitty AIR 1934 All 1053, wherein, it was held by a Division Bench of the Allahabad High Court that no person, who has not been named in the will either expressly or by necessary implication, can be granted probate of will v that the order passed to that effect is illegal and cannot be up held. This view I have already taken above. In Edward Waston's case AIR 1934 All 1053 it was also held that where the executor, who had originally applied, has died since the proper course to be adopted is to proceed under Section 232 of the Act and that the question of granting letters of administration is, however, to be considered when a proper application is made by a universal or residuary legatee. Biharilal's case AIR 1917 Pat 209 is of no assistance and is clearly distinguishable on facts. So far as Edwara Waston's a case AIR 1934 All 1053 is concerend, the question of granting leave to amend the application for grant of probate so as to convert it into one for grant of letters of administration did not arise. To certain extent, Edward Waston's case AIR 1934 All 1053 supports the contention of the learned Counsel for the respondent No. 1
10. I respectfully while following the view taken by the learned single Judge in Rajendra Kumar's case 1950 RLW 171, which is based on Bhagmal's case AIR 1931 Lah 231, accept the contention of the learned Counsel for the respondants that the leave should be granted to the petitioner-respondent No. 1 to amend the petition for grant of probate so as to convert it into one for grant of letters of administration on behalf of a universal legatee as convisaged by Section 232 of the Act.
11. In view of the conclusion, to which I have arrived at, it is not necessary to consider the other contention of the learned Counsel for the appellant that petitioner-respondent No. 1 has not been to prove the execution of the will, certified copy of which has been marked as Ex.1.
12. The result is that I allow this appeal & revoke the grant of probate to petitioner-respondent No. 1 and remand the case to the District Judge pratapgarh, who shall permit the petitioner-respondent No. 1 to amend the petition by substituting prayer therein for grant of letters of administration with the copy of the will annexed instead of one for grant of probate. He will allow both the parties to lead evidence and there after, decide whither petitioner-respondent No. 1 is entitled to the grant of letters of administration with a copy of the will annexed as universal legatee under Sec. 232 of the Act. In the circumstances of the case, the parties shall bear of their own costs of this appeal.
13. Mr. P.C. Mathur submits that the full court-fee paid on the memo of appeal may be ordered to be refunded as the case has been remanded to the District Judge, after allowing the appeal.
14. In view of Section 62 of the Rajasthan Court Fees and Suits Valuation Act (No. XXIII of 1961), I direct that the full court-fee paid on the memo of appeal be refunded to the appellant. Let a certificate of refund be issued to the appellant.