B.R. GAVAI, J.

1. An important question, ‘as to whether the application under Section 301 of the Indian Succession Act, 1925 (hereinafter referred to as “the Succession Act”) can be made only by a beneficiary or legatee, who accepts the Will and, as to whether it cannot be made by a person who seeks to dislodge the Will or contest the application for probate or Letters of Administration with Will annexed', arises for consideration in the present appeal.

2. The bare necessary facts for deciding the present appeal are as under:-

3. One Malati Srivastava (hereinafter referred to as “the deceased”) expired on 31/08/2005, leaving behind her 9 nephews/nieces being sons and daughters of her predeceased brothers/sisters and her sisters in law (being the widows of her predeceased brothers) as her only legal heirs. The deceased had left behind, as part of her estate, various immovable properties as well as jewellery and shares etc. One of the most valuable assets left behind by the deceased was a Flat being Flat No. 303, Belmont, Napean Sea Road, Mumbai along with Garage (Hereinafter referred to as “the Belmont Flat”)

4. Respondent Nos. 1 and 2 herein filed Probate Petition No. 223 of 2006 for propounding the Will dated 30/09/2001 of the deceased. Under the said Will, Respondent Nos. 1 and 2 were appointed as Executors and Trustees of the Estate of the deceased. Similarly, by the said Will, the Belmont Flat has been bequeathed to Respondent Nos. 1 and 2. The Will did not make any provision for remainder estates of the deceased, which therefore, according to the Appellants, devolved as of intestacy.

5. In the proceedings of the Probate Petition, Appellants and Respondent No.5 lodged Caveats and filed Affidavits in support thereof, for opposing the grant of Probate of the Will. As such, the Probate Petition came to be converted into Testamentary Suit No. 9 of 2007. According to the Appellants, Respondent Nos. 1 and 2 were not properly administering the estate of the deceased. In a nutshell, it was their case that though certain details were sought from the said Respondents, they were not responding. As such, the Appellants were required to file Misc. Petition No.38 of 2011 under the provisions of Section 301 of the Succession Act. Certain directions came to be issued by the learned Single Judge in the said proceedings. However, it appears that, a preliminary objection to the tenability of the said proceedings under Section 301 came to be raised by Respondent Nos. 1 and 2, on the ground that the application under Section 301 can be made only by a beneficiary or legatee who accepts the Will and it cannot be made by a person who seeks to dislodge the Will or contest the application for Probate or Letters of Administration with Will annexed.

6. The learned Single Judge framed the following two questions in para 9 of his Judgment, which read as under:-

“9. This raises two questions. First, whether in a Petition seeking probate, a person who has filed a Caveat, as the Applicants have, i.e., one who disputes and challenges the Will, can at all seek the removal of a probate Petitioner as an executor? Second, whether in a probate Petition, a Caveator can in addition seek to supplant the named executor by some other person as an administrator and seek a variety of interim reliefs including the appointment of a Receiver and various injunctions?”

7. After considering the rival submissions and various authorities cited at the Bar, the learned Single Judge concluded in para 26 of his Judgment as under:-

“26. The following propositions may be culled from the discussion:

(a) An application under Section 301 of the Succession Act can only be made to the High Court.

(b) Such an application can be brought at any time even during the pendency of a probate petition or one for Letters of Administration with or without Will annexed. The grant of probate or Letters of Administration is not a condition precedent to the maintainability of such an application.

(c) Wh