Probate can only be granted to an executor appointed by the will, but if no executor is appointed, letters of administration with a copy of the will annexed can be granted to a universal or residuary legatee under Section 232 of the Indian Succession Act, 1925.

1. - This appeal by Smt. Govindi Bai has been filed under Section 299 of the Indian Succession Act (No. XXXIX of 1925) (here in after referred to as 'the Act') against the order dated January 31, 1972 of the District Judge, Pratapgarh, by which, he allowed the petition of respondent No. 1 Purshottam Lal for the grant of probate in respect of the will dated August 17, 1934 which was registered on August 20, 1934.

2. Madanlal (deceased) executed a will in favour of Purshottamlal (petitioner) on August 19, 1934. The will was got registered on August 20, 1934. Madanlal died on August 17, 1944. It was averred by the petitioner-respondent No. 1 that the probate of the will dated August 17, 1934 may be granted to him as he wants to obtain the possession of the house left by the deceased testator Madanlal. The house is situate in Mohalla Gopalganj, Partapgarh. Smt. Govindi Bai (appellant) and Smt. Sunder Devi contested the petition. It was alleged by them that no will was executed by Madanlal in favour of the petitioner. The house which was bequeathed to the petitioner, remained in possession of Smt. Dolatbai until October, 1966. After the death of Smt. Dolatbai, the house came in possession of Smt. Govindi Bai and since then, she has been in continuous possession of it. Smt. Dolat Bai is said to have executed a will in favour of Smt. Govindi Bai and it was in pursuance of that will that she came in possession of the house. The learned District Judge framed two issues inclusive of the relief, which, when translated into English, read as under:

(1) Whether Madanlal Mukhiya had executed a will in favour of Purshottom Lal on August 17, 1934 and got in registered?

(2) Relief?
The learned District Judge, after considering the evidence of the parties, held that it was proved that Madanlal executed the will (Ex. 1) in favour of Purshottam Lal and that it was his last will. It was also found by him that at the time of the execution of the will, the deceased testator was of sound mind and knew the consequences of his act. He, therefore granted probate to the petitioner in respect of the will dated August 17, 1934.

3. Aggrieved, Smt. Govindi Bai has filed this appeal.

4. Appellant Smt. Govindi Bai died on May 1, 1980 and respondent No. 2 Smt. Sunder Bai has also died. Smt. Madhu Baja was impleaded as appellant in place of Smt. Govindi Bai. The name of respondent No. 2 Sunder Devi was struck off vide court's order dated April 12, 1973. The other respondents besides the petitioner Purshottam Lal are Smt. Anasuiya Bai, Smt. Hem Kanwar and Smt. Nirmala Bai.

5. I have heard Mr. P C. Mathur for the appellant and Mr. I.C. Maloo for the respondent No. 1 Purshottam Lal and have also gone through the record.

6. The first argument that was raised by the learned Counsel for the appellant is that in view of the provisions contained in Section 222 of the Act, probate could not have been granted to the petitioner, for, no executor was appointed by the will. The certified copy of the will has been placed on record as Ex. 1. Permission was accorded by the learned-District Judge to lead secondary evidence in respect of the will. A perusal of the certified copy of the will shows that no executor was appointed by the deceased testator Madanlal in his will. According to Section 222 of the Act, probate can only be granted to an executor appointed by the will and the appointment may be expressed or by necessary implication. There is nothing in the will to show that even by necessary implication, any appointment of the executor was made. Learned Counsel for the petitioner-respondent was unable to support the order of the District Judge granting probate on the will dated August 17, 1934. He submitted that the case may be remaneded to the learned District Judge, Pratapgarh for giving him leave to amend the petition so as to convert it into a petition for grant of letters of administration with a copy of the will annexed.

7. Section 232 of the Act is as follows:

"232. Gra