Probate restricted to appointed executors; contentious will disputes must follow strict statutory procedure and proper citation.
Probate can be granted only to an executor appointed by the will, expressly or by necessary implication; where the beneficiaries are only legatees, the proper remedy is letters of administration with the will annexed. On the will read in this matter, no executor had been appointed, so the probate grant to the petitioners was unsustainable. The proceedings were also defective because the statutory requirements for probate were not met: the petition lacked proper disclosure of the deceased's family and relatives, necessary citation was not issued, and the dispute became contentious when execution of the will and the testator's capacity were challenged, requiring conversion into a regular suit. The grant was liable to be set aside and the matter remitted for fresh consideration.
Issues: (i) Whether probate could be granted to beneficiaries who were not appointed as executors under the will. (ii) Whether the probate proceedings were vitiated for non-compliance with the statutory requirements governing probate and contentious proceedings.
Issue (i): Whether probate could be granted to beneficiaries who were not appointed as executors under the will.
Analysis: Probate under the Indian Succession Act can be granted only to an executor appointed by the will, expressly or by necessary implication. Where no executor is appointed, the proper course for persons claiming under the will as legatees is to seek letters of administration with the will annexed. On a reading of the will, there was no express or implied appointment of the petitioners as executors, and they were only beneficiaries under the instrument.
Conclusion: Probate could not lawfully be granted to the petitioners, and the grant was unsustainable.
Issue (ii): Whether the probate proceedings were vitiated for non-compliance with the statutory requirements governing probate and contentious proceedings.
Analysis: The petition did not satisfy the requirements applicable to a petition for letters of administration, including disclosure of the deceased's family and relatives, and no proper citation was issued to necessary parties. The proceedings had become contentious because execution of the will and the testator's mental capacity were specifically disputed, yet the matter was not converted into a regular suit as required. The record also disclosed further procedural defects, including non-compliance with valuation and ancillary requirements governing probate matters. These defects were substantive and went to the validity of the grant.
Conclusion: The proceedings were defective in substance and the grant of probate was liable to be set aside.
Final Conclusion: The probate order could not be sustained, and the matter had to be remitted for fresh consideration in accordance with law.
Ratio Decidendi: Probate can be granted only to an executor appointed by the will, and where objections make the matter contentious, the proceedings must comply strictly with the statutory procedure, including proper citation and treatment as a regular suit.
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