JUDGMENT

G.S. Patel, J. - This Notice of Motion requires more explanation than it deserves. The three Applicants Naresh Nathulal Pal, Pushpa Hemraj Bakhiya and Hemraj Gangasai Bakhiya are not related either to Balakrishna Ladhmal Chhabda ("Balakrishna"), the first of the two deceased persons, or his daughter Urvashi Balakrishna Chhabda ("Urvashi"). They were the Chhabda family''s servants.

2. It seems that Balakrishna died leaving a Will dated 28th September 2010. His executors, one Rakesh Kumar Jhunjhunwala and Bindia Kripalani sought Probate to that Will. In his Will, Balakrishna said that his daughter, Urvashi, unmarried, was unable to look after herself. The Will said that she suffered from severe mental health conditions. She was the sole legatee of his entire estate. The Will placed the responsibility on the executors: if two doctors certified to Urvashi''s capability, the executors and trustees of Balakrishna''s estate and Will would hand over the corpus of his estate and all accretions to her. The Testamentary trust would thus then end. Urvashi herself filed a Testamentary Petition No. 1645 of 2013 seeking Letters of Administration without Will annexed claiming to be the sole heir and therefore solely entitled to her father''s, Balakrishna''s, estate.

3. The two matters were listed together on 13th October 2014 when, and I say this with great responsibility, matters took an exceedingly strange turn. Neither Petition was contested. Neither Petition was being tried. There were no Defendants. There were no caveats. No issues had been framed. The learned Single Judge thought it fit to consider which of these two claims, i.e. the one for Probate or the one for Letters of Administration as on intestacy should be preferred. Urvashi was subjected to a medical examination under some previous orders and those reports were read into the matter by the Court. Then the Court put some questions to Urvashi. She was given some stationery and made to write out some material. On this the Court came to the conclusion that she was a person of truth as also a person in knowledge of the estate of the deceased; and that her firmness in wanting to deal with properties herself was brought out ''loud and clear'' before the Court. As both Petitions covered the same estate, they seemed to have been jurisprudentially telescoped in a manner that I think is not only completely impermissible but renders vulnerable the order itself as being per incuriam and contrary to the provisions of the Indian Succession Act, 1925 (not one of which is noted in the order). To begin with Section 213 provides that no right as an executor or legatee can be established in any Court of Justice unless a Court of competent jurisdiction has granted probate of the Will under which the right is claimed or granted. Section 218 provides for persons to whom administration may be granted on intestacy. Section 222 provides for grant of probate only to executor appointed under the Will. Thus, if Urvashi wanted to contest the Will - and she undoubtedly had a caveatable interest - she ought to have filed (or been allowed to file) a caveat to oppose the Probate Petition. Indeed, on the Court''s finding that she was ''capable'' and a ''person of truth'', this was the only option available to the Court. Instead, the Court summarily dismissed the Probate Petition on the ground that since the executors did not claim any part of the estate therefore the Probate Petition would stand dismissed. Letters of Administration were thus directed to be issued to Urvashi.

4. There are very many things in this order that in my view simply could not have been done. A Will disrupts the normal line of succession; otherwise we would have no need for it. The fact that it did not in this case is irrelevant. In the scheme of the Succession Act, Probate is accorded a preferential status, for this very reason. Further, title passes through the executor. It is the duty of the executor to apply for Probate of the