H.L Agrawal, J.:—This is an appeal under S. 299 of the Succession Act by the defendant-objector against the judgment and order of the 2nd Additional District Judge, Patna, granting probate of the will said to be executed by one Raghunandan Khalifa on 15-6-1938 in favour of the two plaintiffs who died one after the other during the pendency of this appeal and have been substituted by their heirs and legal representatives.

2. The appeal was heard in part earlier and was adjourned for comparison of the signature of the executant by a handwriting expert. After receipt of the report of the expert, it has been heard again.

3. According to the case of the plaintiffs, the testator was residing in mohalla Sadiqepur in the town of Patna City. Undisputedly he did not have any child. The will in question (Ext. 2) is dated 15-6-1938 in favour of his nephews with respect to all his properties, namely, three houses which were his self acquired property and an Akhara which was his ancestral property, on account of the services faithfully rendered to the testator and his wife.

3A. According to the stipulation in the will, the testator was to remain the absolute owner of the properties till his lifetime and thereafter his wife Basanti Devi in possession of the same but as a limited owner, having no right of alienation. After her death the plaintiffs were to become the owners of the properties in question. Admittedly the testator died on 11-9-1959 but according to the case of the appellant, he had executed a will on 16-1-1959 bequeathing two of the houses and the Akara in favour of Sri Mahabirjee. This will, which has been marked as Ext. B in this case is registered. This document also contained similar stipulation with respect to the right of the testator over the properties during his lifetime and after his demise, the life interest in favour of his wife. He also nominated five persons of the locality to manage the properties and perform the necessary religious obligations of the deity.

4. As already said earlier, the testator died on 11-9-1959 and thereafter his wife Basanti Devi got herself mutated in the municipal record in respect of the properties. Although some objection was raised by the aforesaid members of the committee to the mutation of the name of the widow. Basanti Devi also died on 4-5-1962 and then an application for probate of the will was filed by the plaintiffs on 31-7-1962 in the court of the District Judge, Patna. In the application it was claimed by the plaintiffs that they had performed the funeral of the testator Raghunandan, his widow as well as their Sradh ceremony and were already in possession of the property in question. It was further alleged that the deceased had left behind no near relation on whom notice was necessary to be issued.

5. The appellant, however, filed objection petition on 22-8-1963 challeng the genuineness of the will. According to appellant the plaintiffs had no manner concern with the testator or his wife nor they used to look after and serve them, rathe was the objector who lived with and service them and it was Mostt Basanti Devi v. performed the Sradh ceremony Raghunandan. According to them, Ext. B was the true and genuine will propounded by testator. Some further allegations were also made regarding the right and title of the test over the properties in question. It is necessary to go into them. On filing of objection, the proceeding was converted into a regular title suit.

6. The suit was earlier decided in favour of the plaintiffs by the judgment dated 31-1-1964 holding that the win (Ext. 2) was genuine. On 24-1-1964 i.e a few days after the judgment the defendant had filed a petition along with certified copy of the will Ext. B praying to call for the original of the said win from the custody of the punches aforesaid and not to decide the matter finally until that time. This petition was, however, rejected by the predecessor of the learned Additional Subordinate Judge on the ground of delay, by his order dated 24-1-1964. Against that order the appellant filed an appeal (First Appeal No. 174 of 1964) in this Court And this court by the judgment and order dated 23-2-1967 remanded the case to the court below with a direction to give an opportunity to the appellant for the production of the said will dated 16-1-1959 and allow the parties to adduce evidence on the question as to whether the said win was genuine, executed by the testator Raghunandan.

7. After the remand, further evidence was adduced in suit and the defendant-appellant examined three more witnesses to prove the due execution of the will (Ext. B) namely D.Ws 4, 5 and 6. The original will dated 16-1-1959 was also produced and has been marked Ext. B. The learned Additional District Judge, however, again decreed the plaintiffs suit and held that the will Ext. 2 was genuine being duly executed by the testator Raghunandan and was his last will. He rejected the case of the defendant that the will Ext. B was executed by the said testator. One of the grounds for rejecting this will (Ext. B) assigned by the court below was the non-examination of a handwriting expert to prove the due execution and endorsement of the signatures of Raghunandan on this document and get them compared with his signatures on a registered sale deed taken by D.W 2 in the name of his wife and admittedly being in his possession. As already stated earlier, in order to resolve the main controversy it was decided by us that the genuineness of the second will (Ext. B) may be decided by getting the alleged signature of the testator examined by a handwriting expert with reference to the admitted signatures. So further hearing was adjourned. The report has since been received and according to the report the signature of the testator do not tally with the signatures on the sale deed No objection was filed in regard to the report of the handwriting expert and Mr. Thakur Prasad appearing for the appellant did not seriously challenge the report. Regarding the report of the expert nothing was pointed out to us as to why it should not be accepted. Apart from the other circumstances which have been considered by the trial court in rejecting the second will the opinion of the handwriting expert clinches the issue and, therefore, it is held that Ext. B, the second will, propounded by the appellant is not genuine document.

8. Now I proceed to examine the mentions raised on behalf of the appellant challenge the will in question namely Ext. 2. The first ground urged by Mr. Thakur Prasad that the applicant for probate itself was not maintainable as no executor was appointed the will as required by law namely S. 222 of the Indian Succession Act.

9. He also relied upon several decisions in support of his contention namely, Sheo Narain Prasad v. Santoo Sao, 1967 BLJR 326, Bihari Lal Mahton Tatak Gayawal v. Ganga Devi, AIR 1917 Patna 209 and Edward Waston Coleston v. Mrs. Theresa Chetty, AIR 1934 All 1053. The proposition raised by Mr. Thakur Prasad as such being well settled was not disputed by the learned counsel for the respondent but it was contended on their behalf that this question was not agitated by the appellant on the earlier occasion when they had come to this court in First Appeal No. 174 of 1964 and therefore this point is barred by the principle of constructive res judicata and should not be allowed to be raised; and secondly that although the plaintiffs were not expressly appointed as executors of the will in so many words, the intention of the testator to that effect was well evident and manifested by necessary implication from the recital in the document itself. Learned counsel in support of his contention had placed reliance upon the following two paragraphs of the will.

“3. That it will be encumbent upon the donees the nephews to perform the Sradh and other pious acts of the executant and his wife according to means and in respect of the properties mentioned above they will get themselves mutated in the Municipality after the death of the executant and his wife.

4. That the donees on taking proper and necessary steps will obtain probate.”

10. Mr. R.K Verma who appeared on behalf of the respondent at the second stage of the hearing of the appeal had also pressed into service the same paragraphs of the will. Mr. Thakur Prasad, on the other hand, contended that inasmuch as the main duty of the executor was to collect all the income, pay all the debts of the testator and inasmuch as, no such stipulation was made in the will in question, the plaintiffs could not be said to have been appointed executors by necessary implication. He referred in support of this contention to the case of Ameer Chand v. Mohanund Bibi, (1907) 6 Cal LJ 453 where it was observed that in order to constitute one as an executor according to the tenor of the will, it must appear on a reasonable construction thereof, that the testator intended that he should collect his assets, pay his debts and funeral expenses and legacies, which are the essential duties of an executor.

11. I however, find myself unable to agree with the contention of Mr. Thakur Prasad that in the absence of any such direction in the will with respect to the collection of the assets or payment of his debts, in view of the clear recitals contained in clauses 3 and 4, the appointment of the plaintiffs by necessary implication cannot be established. By Cl. 3 the testator made it incumbent upon the donees to perform his Sradh etc. Not only that, in the next clause he specifically intended that the donees were to take necessary steps to obtain the probate of the will. In my considered opinion, although the testator did not nominate the plaintiffs in the will by express word “executor”, yet he recommended and handed them the right to obtain the probate which right appertains only to an executor. The language clearly indicates be testator's intention that the plaintiffs should be the executors of his will. The first point raised by Mr. Prasad therefore has no substance and is rejected. It is, therefore, not necessary to record a conclusive finding with respect to other aspect of the matter as to whether this question is barred by the principle of constructive res judicata.

12. Mr. Thakur Prasad next contended that no probate could be granted in law in favour of two executors jointly. This contention may be noticed simply to be rejected, as the contention seems to have been advanced without noticing section 224 of the Indian Succession Act which clearly provides for grant of probate to several executors either simultaneously or at different times. It has been said earlier, that both the plaintiffs in whose favour the will has been granted by the court below died one after another during the pendency of the first appeal and were substituted by their heirs and legal representatives. Respondent No. 1 was substituted by order dated 10-1-1973 and respondent No. 2 by the order dated 3-7-1974. From a perusal of both the orders it appears that no objection was raised on behalf of the appellant to the substitution of the heirs of the deceased respondents aforesaid. But at the time of final hearing, however, it was contended by Mr. Thakur Prasad that no substitution could be made in place of the named executors as no probate of the will could be granted in favour of the substituted heirs and, therefore, the remedy of the heirs was to institute a separate proceeding for grant of letters of administration. He placed reliance upon the decision of a learned single Judge of this court in the case of Sheo Narain Prasad v. Santoo Sao, 1967 BLJR 326. In that case the death of the sole executor took place at the trial stage itself and it was held that no substitution can be allowed in place of the deceased applicant and that a person who may be entitled to apply for grant of letters of administration cannot be allowed to be substituted in that proceeding in the trial court and to convert the proceeding as if it was a proceeding for grant of letters of administration.

The reliance put by Mr. Prasad on this decision is also erroneous and misplaced inasmuch as the learned single Judge paragraph 5 of the Report itself has refer to an earlier Bench decision of this court the case of Musammat Phekni v. Musammat Manki*, 1930 Patna 618 where substitution at appellate stage was allowed in place of applicant in the court below for grant of letters of administration, for the simple reason that in fact there should be no difficulty in allowing the substitution at the appellate stage inasmuch as the judgment of the court below either granting or refusing to grant the letters of administration or the probate is a judgment in rem. If, therefore, substitution is not allowed at the appellate stage, the judgment of the court below, right or wrong, will remain final and being a judgment in rem will affect everybody who is entitled to benefit under the will. But this is not the position when the applicant dies at the trial stage. A judgment given in probate proceedings operates as a judgment in rem so far as the genuineness or otherwise of the will is concerned; it binds not only the parties to the proceedings but also other persons. This view finds full support from Mt. Phekni's case.

13. Apart from the above legal position, the executors are also the beneficiaries under the will and their claim in the trial court was that on the death of the testator they had already come in possession over the property in question. In that view of the matter, the substitution of their heirs and legal representatives, apart from the fact that ho opposition was made to their substitution, in my opinion, was substitution of the rightful persons in the appeal.

14. The appeal, therefore, has got no merit and must fail. The appellant having set up a false defence on the basis of a will which has been held to be not genuine and the executors having been given a long fight, the appellant must be saddled with cost. The appeal is accordingly dismissed with costs.

Lalit Mohan Sharma, J.:— I agree.

Appeal dismissed.