GOVIND M ASRANI Vs. JAIRAM ASRANI

JUDGEMENT

(1.) THIS appeal which is filed against the judgment of Kailasam J. raises an important point relating to procedure in a probate action, namely, whether, in a pending application for the issue of probate it the sole executor dies, before proving the will, it will be competent for a legatee or any other person interested, to intervene and continue the proceedings to prove the will and obtain letters of administration in his own right. That question has been answered in the affirmative in Rama Naidu v. Rangayya Naidu, ILR 56 Mad 346: (AIR 1933 Mad 114), but the correctness of that decision has been challenged before us.

(2.) THE appellant and the two respondents are the children of one Rao Bahadur matoomal A. Asrani who died on 29-5-1960. It is alleged that the deceased had left behind him a will in which he had appointed Harichand u. Kalre, the husband of the second respondent as the sole executor Under the said will the children of the testator are the principal legatees.

(3.) HARICHAND C. Kalre applied to this Court in O. P. No. 108 of 1961 for the grant of probate; but before the will could be proved he died on 27-7-1961. The respondents, two among the three children of the testator, who were also the legatees under the will applied to come on record in the petition for the issue of probate, as the legal representatives of the deceased executor and to continue the petition till letters of administration with the will annexed were granted to them. This application was opposed by the appellant who had by then entered a caveat. The Master overruled the objection and allowed the application with liberty to the respondents to carry out the necessary amendments to the petition for the grant of probate. This order has been upheld by Kailasam J.