The main legal point established in the judgment is the importance of establishing the sound and disposing state of the testator's mind in probate cases, and the court's discretion to grant modified relief to the legal representative based on equitable grounds.

( 1 ) THE present appeal is directed against the Judgment of the learned District Judge in O. S. No. 23 of 1954 by which he granted a decree for probate in favour of the respondent.

( 2 ) THE suit was originally instituted by one Basavalingappa on 20-8-1953 praying for the issue of a probate in his favour on the ground that one Channamma had executed a will on 20-9-1950 appointing him as an executor thereunder. Before notice of this petition could be served on the respondent Komalamma who is admittedly the daughter of the pre-decessed son of Chennamma, basavalingappa himself died on 16-12-1953 and his grandson Somasekharappa filed an application for being substituted as the legal representative of the deceased. That application was granted. After service of notice in due course, Komalamma filed her statement of objection and she contended that the petitioner Somasekharappa by himself had no right to continue the proceedings as there were other legal representatives of deceased Basavalingappa, the original petitioner, that the alleged will had been taken from Channamma when she was not in a disposing state of mind, and that the testatrix had no right to execute the will as she had no title to the properties included therein.

( 3 ) ON the evidence placed before him, the learned District judge came to me conclusion that somasekharaypa was the legal representative and could continue the petition, that the will had been executed by Chennamma when she was in sound and disposing state of mind and that somasekharappa was entitled to a decree for probate in his favour. The learned Judge also considered the question raised by the present appellant as regards the dispute for payment of Rs. 250/-which under the will Komalamma was to be paid by the executor. He came to the conclusion that plaintiff had not paid Rs. 250/- and accordingly made the payment of Rs. 250/-to the appellant a condition precedent to the issue of a Probate in his favour. He directed the parties to bear their own costs.

( 4 ) IT is against this order that Komalamma has preferred this appeal. Her learned Advocate Sri adinarayana Rao has contended before me that Somasekharappa was not the legal representative, that he could not have been bought on record as the right to sue did not survive after the death of Basavalingappa, that the will had not been proved beyond doubt, and that the procedure of granting probate in favour of Somasekhara was erroneous.

( 5 ) SO the first question that falls, to be considered in this appeal is as to whether Somasekharappa was rightly brought on record as the legal representative of the deceased petitioner basavalingappa. It may be noted that the petition of Basavalingappa was one for probate as an executor and Section 222 of the Indian Succession Act categorically lays down that probate shall be granted only to an executor appointed by the will. So, the learned Advocate for the appellant has contended that Somasekharappa was not only ineligible to be brought on record as a legal representative but that the Court had erred in granting him probate in view of the mandatory provisions contained in Section 222. He has cited a number of decisions particularly of the calcutta and the Madras High Courts in which dissenting views have been expressed as to the competency of bringing a legal representative on record in an application filed by an executor for the issue of a probate.

( 6 ) DEALING with the Calcutta decisions in their chronological order the first decision cited is that in Sarat Chandra Banerjee v. Nani Mohan Banerjee, ILR 36 Cal 799, in which Harington, J. held that the application by a widow who had applied as a legal representative of the deceased executor-petitioner could not be granted as the right to sue did not survive and the suit itself abated under Order 22, Rule 1 of the Civil Procedure Code, in His Lordship's opinion, applicants under Order 22 must be entitled to some relief which the deceased plainti