( 1 ) ON a petition under Section 276 of the Indian succession Act, 1925 (Probate No. 42/99) for grant of probate/letters of Administration, made by the applicant Shri Dalip Bhatia, Letters of Administration in respect, of the Will dated 20. 5. 82, with a copy thereof annexed, was granted in his favour on 27th of september, 2001, subject to his supplying requisite court fee and completion of necessary formalities.

( 2 ) THE applicant has now approached this Court with instant application seeking the requirement of furnishing an Administration Bond and a Surety Bond to be dispensed with, on the plea "that the petitioner is not only the executor but also the beneficiary and legal heir of the deceased and is the beneficiary of the property bequeathed to him under the aforesaid will. As such, the petitioner was not to do or carry out any act in compliance and direction under the will. "

( 3 ) SECTION 2- (c) of the Indian Succession Act, 1925 defines an executor to mean a person to whom the execution of the last will of a deceased person is, by the testator s appointment, confided.

( 4 ) UNLIKE an administrator, who is appointed by the court, an executor is appointed by the will. An executor owes his position as such to an appointment by the testator. where there is no entrustment of the duty of execution of the will or the administration of the estate of the deceased, in the will in favour of a person, whether expressly or by necessary implication, such person cannot claim to occupy the position of an executor In the case on hand, there is no appointment of the applicant, in express terms or by necessary implication, as an executor. Thus, to plead that by virtue of being an executor of the will in question, furnishing. of Administration and Surety bond by the applicant should be dispensed with, is misconceived. Being a beneficiary under the will or a legal heir of the testator is not enough to dispense with the Administration/surety bond.

( 5 ) TO support the application, learned counsel for the applicant referred to Single Bench decisions of this Court in "subhash Chopra and Another Vs State" , 39 (1989) DLT 297, and "sambhu P. Jajsinghani Vs. Kanayalal P. Jaisinahani and Other 60 (1995) DLT 1. In the former case, which related to grant of letters of probate, it was observed:

"5. This being a petition for grant of probate of a Will, Section 291 of the indian Succession Act, 1925 which applies only to Letters of administration (which is not sought in the present proceedings), does not apply to the instant case. "

( 6 ) IN the latter case too, which again pertained to grant of Probate, following the decision in Subhash chopra s case (supra), same legal position was reiterated.

( 7 ) IN yet another matter concerning grant of probate, being IA. 1069/2001 in Probate Case No. 46/95, based on the aforesaid two decisions, same principle of law was laid down and Administration and Surety bonds were dispensed with.

( 8 ) PRESENT case is clearly distinguishable from the ones referred to above in as much as the cited cases pertained to grant of probate, unlike the case on hand where only letters of administration has been granted.

( 9 ) SUBHASH Chopra s case (supra) instead of advancing the plea for dispensing with administration and surety bonds rather makes the requirement thereof more pronounced. For a better understanding of the legal position in the present context, it sounds useful to reproduce Section 291 of the Indian succession Act, 1925, which reads in the following words: -

"91. ADMINISTRATION bond.

(1) Fvery person to whom any grant of letters of administration, other than a grant under section 291, is committed, shall give a bond to the District Judge with one or more surety or sureties, engaging for the due collection, getting in, and administering the estate of the deceased, which bond shall be in such form as the Judge may, by general or special order, direct.

(2) when the deceased was Hindu, muhammadan, Budhi