The central legal point established in the judgment is that probate can only be granted to the executors appointed by the Will, and letters of administration cannot be granted to a beneficiary who is not a residuary legatee, based on the provisions of the Indian Succession Act, 1925.

1. By this chamber summons, plaintiff/petitioner in suit no. 78 of 2012 seeks dismissal of the caveat dated 21st June, 2012 filed by the caveator Ms.Nirmala Patrcik Bergan and permission to proceed with the petition and obtain grant of probate of the last Will and testament dated 17th December, 1999 of the deceased Mrs.Florie Lawrence D'Souza.

2. Mr. Mehta, learned counsel appearing for the petitioner submits that affidavit in reply is served upon the petitioner's advocate by the caveator respondent now and petitioner be permitted to proceed on the basis of denial. Permission is granted. Some of the relevant facts emerge from the pleadings, for the purpose of deciding these proceedings are summarized as under:-

3. On 23rd June, 2008, Mrs.Florie Lawrence D'Souza expired (hereinafter referred to as the said deceased). She had executed her last Will and Testament dated 17th December, 1999. The said deceased left behind her four daughters and one son. By the said Will, the said deceased appointed two of her daughters as executrixes who are the petitioners in petition (561 of 2012). The residuary legatees under the said Will were four daughters of the said deceased.

4. By a letter dated 9th July, 2012 the caveatrix (Mrs.Nirmala P.Bergen) through her advocate addressed to all the legal heirs including executrixes appointed under the Will of the said deceased requested the executrixes to take steps for obtaining probate of the Will of the said deceased.

5. By letter dated 30th August, 2010, petitioner no.2, one of the executrix through her advocate informed the caveatrix that she was aware of her duties and responsibilities as an executrix of the Will of the deceased and she shall discharge the same at the appropriate time and place.

6. Vide letter dated 16th December, 2010, the caveatrix through her advocate alleged that the petitioner no.2 had renounced her rights as an executrix to probate the subject Will of the deceased and requested to produce the original Will of the deceased to enable her to take appropriate proceedings in respect of the said Will.

7. Vide letter dated 7th January, 2011, the petitioner no.2 through her advocate denied that she had renounced her right as an executrix to probate the Will of the deceased.

8. Vide letter dated 16th February, 2011, the caveatrix through her advocate once again reiterated that from the conduct of petitioner no.2, it was apparent that she had renounced her right as executrix for the purpose of obtaining probate and once again requested for handing over original Will to enable the caveatrix to take out necessary proceedings in respect of the said Will. It is the case of the petitioners that though it was to the knowledge of the caveatrix that petitioner no.1 resided at USA, the said letter was sent to the petitioner no.1 at Bandra address of the deceased.

9. On 18th March, 2011, the caveatrix filed testamentary petition (470 of 2011) in this court inter alia praying for letters of administration with Will annexed. It was averred in the said petition that the executrixes had failed and neglected to take up proceedings for probate of the said Will of the said deceased or to renounce their rights as executrixes and to handover the original Will to the caveator herein. In the said petition filed by the caveatrix, petitioners were described as executrixes.

10. On 23rd June, 2011, the caveatrix filed praecipe through her advocate before the Prothonotary and Senior Master to issue citation upon the petitioners to accept or renounce executorship of the last Will of the said deceased. It is not in dispute that the special citation has not been served upon the petitioners so far for seeking renouncement under the provisions of Section 229 of the Indian Succession Act, 1925.

11. On 5th March, 2012, petitioner no.1 herein filed testamentary petition (561/2012) as executrix inter alia praying for probate of the last Will of the said deceased. Petitioner no.2 was subsequently added as p