The grant of probate is defective if there is no executor appointed under the will, and the appellants had a caveatable interest and were entitled to notice of the probate proceeding.

R. N. MISRA, J.

( 1 ) THE appellants applied for revocation of grant of probate at the instance of the respondents in Original Suit No. 1 of 1968, by the learned District Judge Balasore, on 22-8-1908, That application made on 9-12-68 was registered as Miscellaneous case No. 32 of 68 and though made under Order 9, Rule 13 of the Code of Civil procedure, was treated as one under Section 203 of the Indian Succession Act. As the learned District Judge declined to revoke the probate, the appellants have come up in appeal to this Court.

( 2 ) ONE Juihesti Panda was alleged to have executed an unregistered will dated 173-1967 and died on 2-11-1967. The testator had 6. 69 acres of land. In terms of the testamentary disposition, the following three institutions were to benefit;- (1) Banitiya Middle English School through its Secretary Haribandhu mahalla; (2) Sri Ghateswar Mahadev through Marfatdar Gadadhar Dixit; and (3) Sri Ganes Jew Thakur of Banitiya through Marfatdars:-- (a) Harihar Panigrahi, (b) Mahendra Panda, (c) Gadadhar Dixit. On 22-12-1967, an application under Section 276 of the Indian Succession Act for probate of the aforesaid will was filed by Haribandhu Mahalla and Gadadhar Dixit implending Sri Ganesh Jew Thakur through the two marfatdars as opposite parties. In due course the opposite parties were set ex parte and on 22-8-1968, probate was granted. As already indicated, after enquiry on the petition for revocation, the learned District Judge rejected the petition on 30th of January, 1969. The present appeal challenges that order.

( 3 ) ONE of the points of dispute was the absence of any relationship of the present appellants with the testator and consequently absence of any cause of action on the probate being granted by the will. An application for additional evidence was made in this Court at the instance of the respondents. The additional evidence consisted of a petition made by the present appellants for grant of a certificate of succession in respect of the estate of the testator wherein their relationship with the testator was differently indicated than what is asserted in the present case. The two genealogies -- one appended to the petition for revocation end the other to the petition for certificate of succession -- materially differ. The additional evidence has been admitted.

( 4 ) MR. B. C. Mohanty for the appellants contends that the grant of probate in this case was contrary to law and the learned District Judge should have come to hold that it, was a fit case where probate should have been revoked. He further contends that the appellants are certainly related to the testator and as such are entitled to lay claim for revocation. It is true, there has been some discrepancy in the genealogy given on the two occasions but the explanation offered as to how the mistake arose is acceptable and as such no adverse inference can be drawn against the appellants so as to throw out their petition for revocation.

( 5 ) THE will in question did not appoint an executor. Section 222 of the Indian succession Act provides :-

" (1) Probate shall be granted only to an executor appointed by the will. (2) The appointment may be expressed or by necessary implication. "

The will does not really provide for an executor. It is difficult even to hold by any implication that it contemplated any of the parties named therein to work as executor. In fact Mr. Ranjit Mohanty has not contended during argument of the appeal that there has been compliance of Section 222. On the other hand, his stand has been that what has really been granted is letters of administration and not probate. I am not in a position to accept the contention of Mr. Ranjit Mohanty. The Indian succession Act makes separate provisions for letters of Administration and probate. Many provisions are common or even similar, but the statute maintains clear, distinction between the two and in respect of many features the provisions are different. There is no scope to equa