1989 PLP 1953 (CLC)

P.W.2 is the other attesting witness. She has stated that during his lifetime, deceased Jamshed Minwalla had executed a Will. She categorically stated that the Will bears her signature as witness and the Will was executed in his presence by the deceased. There is nothing on record to disbelieve P.Ws. 1 and 2 in regard to the Execution of the Will. Attestation is not in dispute. Therefore, I must hold that ExtA/1 has been duly executed and attested. No objection has been filed by the next of kin. In the absence of any opposition, the Court is not called upon to investigate the matter further and raise suspicion of its own. I do not feel that the matter needs be agitated further. Section 217 of the Act provides that save as otherwise provided by this Act or by any other law for the time being in force, all grants of probate and 1 letters of administration with the will annexed and the administration of the ' A assets of the deceased in cases of intestate succession shall be made or carried' out, as the case may be, in accordance with the provisions of this Part. Section 222, which is material for the purposes of the decision of this case and which occurs in Chapter I of the Part IX, reads as under:‑ "222.‑‑(a) Probate shall be granted only to an executor appointed by the will. (2) The appointment may be expressed or by necessary implication." under:‑ Section 232, which is material and occurs in the same chapter reads as "

232. 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 he 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 ma`, be unadministered." On a combined reading of these sections, it would appear that probate can be granted only to an executor appointed by the will and that the appointment may be inferred by necessary implication. 1n case., where (1) a will has been made but an executor has not been appointed or (2) an executor is appointed‑ who is legally incapable or refuses to act or who has died before the testator or before he/she has proved the will, or (3) the executor dies after having proved the will, but before he/she has administered all the estate of the deceased, a 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/her of the whole estate, or of so much thereof as may be unadministered. It is clear, therefore, that the petitioner would be entitled to the probate of the will only if she shows that she was executor appointed by the will, either expressly or by necessary implication and that if she fails to prove such appointment, all that she may be entitled to is the grant of letters of administration with the will annexed, provided she shows that she is a universal or a residuary legatee and she proves the will. On the question of the proof of the will, the dispute does not any longer survive herein. The short question which, therefore, requires for consideration is whether the petitioner is the executor appointed by the will, either expressly or by necessary implication, because then only the grant of probate to her can be held to be legally valid. The will in question consists of five material paras. In para. 1 the testator stated that he was adult male of sound body and disposing mind. Para. 1 is material for the purpose of the decision of the case and reads as under:‑ "

1. I leave all of my personal belongings, as well as all my movable and immovable property, whether situated in Pakistan or elsewhere, to my wife Homat Mmwalla for her unrestricted use and enjoyment, after satisfaction of any debts and obligations that I may leave at the time of my death. The said property shall include, without loss of generality, cash, bank accounts, investments and deposits of whatsoever kind, and interests or ownership in any business venture." The question whether the petitioner is an executor appointed by the will, either expressly or by necessary implication, falls to be resolved on true interpretation of the relevant provisions of the will extracted above. Para.l is the material provision which requires to be closely analysed in this context. The contents of the said para unmistakably indicate that there was an absolute bequest of all the properties of the testator in favour of the petitioner, that the petitioner was entitled to possession, enjoyment and user of the properties bequeathed and that the possession was to be taken and enjoyment and user was to be made in the capacity of a full and absolute owner. In other words, upon the death of the testator, all his properties were to vest solely in the petitioner, both in interest as well as in possession as an absolute owner and she was to take possession of those properties in the capacity of the owner and that she want to take possession of those properties in the capacity of an absolute owner and to use and enjoy them as such. The disposition in such clear terms constitutes the petitioner an universal legatee to whom the testator gave the whole of his properties which he left at the time of his death. The will contained certain directions with regard to the payment of debts and obligations. However, those directions do not have the effect of constituting the petitioner either an executor or a residual legatee. An executor is the person appointed, ordinarily by the testator by his will or codicil, to administer the testator's property and to carry into effect the provisions of the will (See Halsbury's Laws of England, Edition, Fourth, Volume 17, paragraph 702 at page

373. Section 2(c) of the Act defines the word "executor" to mean a person to whom the execution of the last will of a deceased person is, by the testator's appointment, confided. A residuary legatee, according to Section 102 of the Act, may be constituted by any words that show an intention on the part of the testator that the person designated shall take the surplus or residue of his property. A residuary legatee is not, in law, entitled to immediate possession of the testator's estate or any part thereof and has no right to claim any interest, whether legal or equitable, in any specific asset or each and every assets of which the estate consists. The only right of a residuary legatee . would be to require the executors or administrators to administer the estate t complete and having ascertained the residue to pur him/her in possession of the same and to complete his/her title to the legacy. It is only then that the legatee t would be entitled to say for the first time as regards the property distributed. On a true construction of the will there is no manner of doubt that the properties of the testator that where bequethed to the petitioner vested in her interest as well as possession upon the death of the testator as an absolute owner. The petitioner was not appointed either expressly or by necessary implication as an executor to administer the testator's property and to carry into effect the provisions of the will. Nor was she residuary legatee who was entitled only to the residue of the estate after the administration was completed and who was entitled to be put in possession of the residue and to the completion of her title to the legacy only after the executor or administrators had discharged their obligations with regard to the satisfaction of debts and legacies. The directions contained in para.l of the will with regard to the payments of debts have not effect of constituting the petitioner an executor or a residuary legatee because the testator's intention clearly was to vest his properties in interest as well as in possession of the petitioner upon his death and not after debts were paid by her to the process of administration of the properties. At the highest, the absolute bequest in favour of the petitioner imposes an obligation on her to carry out those directions as a part and parcel of the bequest. On a fair, proper reading of the material provisions of the will, there is no manner of doubt, therefore, that the petitioner was constituted the sole/universal legatee under the will, in whom the properties of the testator vested, both in interest as well as in possession, upon the death of the testator and that the petitioner was not appointed as an executor of any will, either expressly or by necessary implication, nor was she constituted a residuary legatee. In view of the foregoing discussion, the petition in so far as it prayed for grant of probate is not maintainable. The petitioner moved an application for alternative prayer for the grant of letters of administration and also filed amended petition. I grant the application. The amended petition is brought on record. I have pointed out earlier that Section 232 of the Act enables the grant of the letters of administration with the will annexed of the whole estate, or of so much thereof as may be unadministered, to a universal or a residuary legatee, provided such legatee proves the will, when the deceased has made a will, but has not appointed an executor. In the instant case, the deceased made a will. He has not appointed an executor. However, as found earlier the petitioner has been constituted a universal legatee by testamentary disposition in respect of the whole of the property left by him at the time of his demise. The petitioner has proved the will. Therefore, letters of administration with the will annexed can be j legitimately granted to her. In the result, letters of administration with the will annexed to the petitioner under section 290 of the Act in accordance with law upon the petitioner complying with the other requirements of law, if any, in regard to such grant, be issued to her. AA./H‑167/K Application granted.