- (1.) This appeal is directed against an order of the learned District Judge, Alwar, refusing to grant probate of a will to the appellants.
(2.) Lakshmi Narain, who was an advocate of Alwar, executed a will on the 13th of August, 1947, in favour of the appellants, who are his daughter's sons, in respect of all his properties. He died on the 27th of February, 1948 and the appellants put in a petition for probate of the will on the 15th of March, 1948. The respondents alleged that the appellants were not entitled to probate. The learned District Judge rejected the appellants' prayer for probate. They have, therefore, come up in appeal. The appellants have not been named as executor in the will. They have also not been appointed as executor by implication. Section 222 of the Succession Act lays down that "probate shall be granted only to an executor appointed by the will. " The appellants are minors. Section 223 of the said Act enacts that probate cannot be granted to any person who is a minor. The order of the learned District Judge is quite correct. It has been urged on behalf of the appellants that they are universal legatees, and that as such they are entitled to letters of administration with a copy of the will annexed. They want that the case be remanded to the learned District Judge, and they may be allowed to amend their petition for grant of probate into one for letters of administration. Section 232 of the Succession Act lays down : "when- (a) the deceased has made a will, but has not appointed an executor, or (b) the deceased has appointed an executor who is legally incapable or refuses to act, or who has died before the testator or before he has proved the will, or (c) the executor dies after having proved the will, but before he has administered all the estate of the deceased, an universal or a residuary legatee may be admitted to prove the will, and letters of administration with the will annexed may be granted to him of the whole estate, or of so much thereof as may be un-administered. " It is conceded that the entire properties of the testator were bequeathed to the appellants, but it has been urged by the learned advocate for the respondents that the petition for grant of probate ought not to be amended at this stage. It has been held by the Lahore High Court in Bhagmal vs. Malik Singh, 1931 AIR(Lah) 229 that an application for probate can be allowed to be amended into one for letters of administration even on appeal. The following observation was made in (Shrimati) Lado Rani Gurtu Vs. Mt. Sibhag Rani,1927 AIR(Lah) 770 :- "in this country, especially in the mufassil, the law as to wills is imperfectly known; otherwise Pandit Manmohan Nath who left an elaborate will would undoubtedly have appointed an executor. It does not appear just to defeat this will because of technical error made by the petitioner in the form of her application. ' I think it just to give leave to amend. The case is remanded to the learned District Judge, who will allow the appellants to amend their petition and allow both the parties to adduce evidence, and decide Whether the appellants are universal legatees and are entitled to letters of administration with the will annexed. But as it is the appellants' error, which is responsible for this appeal, they are to pay the costs of the respondents in this Court. .;