The right to obtain probate is confined to the executor and cannot devolve upon the heir of the executor, as per the statutory provisions of The Indian Succession Act, 1925.

AJAY KUMAR TRIPATHI, J.

A very short question of law has been raised in the present appeal arising out of Testamentary Suit No. 1/2010. Since the learned Single Judge refused relief for substitution or transposition to the present appellant Rakesh Bihari Sharan in place of the executor, therefore, the appeal has been filed against the order dated 27.03.2014.

2. The learned Single Judge while dealing with the matter came to a considered opinion keeping in mind the law which has been laid down by the Patna High Court as early as AIR 1917 Patna 209 (DB) as well as the statutory provisions as it stands in The Indian Succession Act, 1925 and declared that after the death of the executor and before the will could be proved no beneficiary or claimant can be permitted to get himself or herself substituted in place of the executor. The probate proceedings comes to an end with the death of the executor.

3. The learned senior counsel representing the appellant on the basis of certain decision of Madras High Court reported in AIR 1963 Madras 456 as well as an analogy sought to be drawn on some observations made by a Division Bench of the Bombay High Court reported in AIR 2011 Bombay 76 and the decision of the Hon’ble Supreme Court reported in (2016) 13 SCC 253 tried to prevail upon this Court that in the interest of cutting down on litigation time and keeping in mind that the appellant is supposed to be one of the beneficiaries of the will, he should have been allowed to be substituted and then the proceedings converted into a proceedings for grant of letter of administration.

4. This Court has serious difficulty in accepting the submission of the learned counsel for the appellant or disagreeing with the findings given by the learned Single Judge. There is no ambiguity in the two proceedings, i.e., probate and letter of administration since the Indian Succession Act, 1925 has envisaged proceeding for probate under Section 276 and the petition for letter of administration separately under Section 278.

5. In addition to above it is of significance that the legislatures have specifically provided Section 222 laying down as to who can be given probate in cases of execution of a will. Since all these sections have relevance, therefore, they are reproduced here-in-below:

“222. Probate only to appointed executor.- (1) Probate shall be granted only to an executor appointed by the Will.

(2) The appointment may be expressed or by necessary implication.”

“276. Petition for probate.- (1) Application for probate or for letters of administration, with the Will annexed, shall be made by a petition distinctly written in English or in the language in ordinary use in proceedings before the Court in which the application is made, with the Will or, in the cases mentioned in sections 237, 238 and 239, a copy, draft, or statement of the contents thereof, annexed, and stating-

(a) the time of the testator’s death,

(b) that the writing annexed in his last Will and testament,

(c) that it was duly executed,

(d) the amount of assets which are likely to come to the petitioner’s hands, and

(e) when the application is for probate, that the petitioner is the executor named in the Will.

(2) In addition to these particulars, the petition shall further state,-

(a) when the application is to the District Judge, that the deceased at the time of his death had a fixed place of abode, or had some property, situate within the jurisdiction of the Judge; and

(b) when the application is to a District Delegate, that the deceased at the time of his death had a fixed place of abode within the jurisdiction of such Delegate.

(3) Where the application is to the District Judge and any portion of the assets likely to come to the petitioner’s hands is situate in another State, the petition shall further state the amount of such assets in each State and the District Judges within whose jurisdiction such assets are situate.”

“278. Petition for letters of administration.- (1) Application for letters