Sanjay Kishan Kaul, J.

1. The petition has been filed by the original petitioner Pandit Devi Datt under Section 276 of the Indian Succession Act, 1925 for the grant of probate of the last Will and testament of the testatrix Shrimati Ram Kesari wife of late Shri Dina Nath. Shrimati Ram Kesari is stated to have passed away on 19.10.1986 and executed the last Will and testament on 27.10.1983 (PW-1/C). The husband of Shrimati Ram Kesari, Shri Dina Nath predeceased her. There was only one child out of the wedlock being her son named Shri Vineet Kumar, who is stated to have executed a Relinquishment Deed dated 4.7.1975 during the lifetime of the testatrix. Shri Vineet Kumar has not been traceable as he left for an unknown destination without informing anyone in January 1983 and nothing has been heard of him since then till date. Pandit Devi Datt filed a petition for succession certificate bearing No. 183/94 before the Administrative Civil Judge, Delhi and in the said proceedings in terms of the order dated 27.7.1995, Shri Vineet Kumar was presumed dead (exhibit PW-2/B-1). The death certificate of the testatrix is exhibited as exhibit PW-1/A.

2. Pandit Devi Datt was the brother-in-law of Shrimati Ram Kesari being the brother of her husband late Shri Dina Nath. It may be noticed that after filing of the petition Pandit Devi Datt has also passed away on 28.10.2000 and his death certificate is exhibited as exhibit PW-2/D. The petition has been prosecuted thereafter by his son, daughter and son of his daughter. In this behalf it may be stated that late Pandit Devi Datt had executed the last Will and testament dated 31.1.1997. In terms of this Will, by virtue of the power vested in him as per the Will dated 27.10.1983 of the late testatrix the present three petitioners were appointed as the executors of that Will.

3. The Will in question dated 19.10.1986 referred to the various assets of the testatrix and provided that her estate would devolve on her son Shri Vineet Kumar only with a life interest without any right to transfer the same. On the demise of Shri Vineet Kumar, the same were to be inherited by the wife and children of Shri Vineet Kumar but in case there were no children his widow was to have a life interest. The crucial clauses of the Will are as under:

4.9. In case my aforesaid son, Vineet Kumar, does not have any lawful heirs and, after the death of his widow, if any as mentioned in paragraph 8 above, all the properties, movable and immovable, shall be donated to some charitable or religious institutions by the Executor.

5.10. I hereby appoint Shri DEVI DATT, son of Shri Lok Nath, resident of 2/6, East Patel Nagar, New Delhi, as the sole Executor of this Will. He shall have the power to name his successors and also the power to sell the plot at Faridabad township and invest the proceeds.

6. The aforesaid clauses come into operation since Shri Vineet Kumar is untraceable and did not marry and thus does not have any lawful heirs. The result is that all the properties both movable and immovable stand donated to some charitable or religious institutions as per the actions to be taken by the executor. Late Shri Devi Datt was appointed as the sole executor with the power to name his successor. It is in pursuance to this power that as per the Will of Late Shri Devi Datt, nomination has been made in favor of the three present petitioners.

7. The petitioners have examined two witnesses. The first witness is Shri V.K. Anand, PW-1 who is one of the attesting witnesses to the original Will, exhibit PW-1/C. He has identified the signatures of the testatrix, the second witness as well as his own signatures and the factum of all of them signing at the same time in the presence of each other. The second witness is Shri Chinta Mani Sharma, PW-2, who is one of the present petitioners being the son of late Shri Devi Datt, who has proved the remaining documents including the death certificates and the certified copy of the proceedings in which Shri Vineet Kumar was presumed to be dead.

8. There is no contest to the Will and the documents stand proved. However, it has become necessary to examine the consequences of appointment of late Shri Devi Datt as an executor and he in turn nominating his successor executors. In this behalf the provisions of the Hindu Succession Act, 1956 (hereinafter referred to as the said Act) have to be perused. In terms of Section 15 of the said Act the property of a female Hindu dying intestate shall devolve as per the said provision. Since the testatrix did not have any son, daughter or husband surviving, the estate would devolve upon the heirs of the husband as per clause (b) of Sub-section (1) of Section 15 read with the provisions of Section 16 of the said Act. The mode and manner of succession of male Hindu is provided in Section 8 of the said Act. Each category of heirs takes to the exclusion of the others. There is no Class I heir of the testatrix and thus it is the Class II heirs who would succeed. In the category of Class II heirs also the father of her husband is no more alive and thus it is category II which would apply in which the only surviving heir of her husband was his brother, late Shri Devi Datt. Thus, if there was no Will late Shri Devi Datt would have been the sole heir to the estate and he alone would have the right to object to the grant of the probate of the Will. It is, however, late Pandit Devi Datt himself who as executor of the Will has filed the present petition.

9. In my considered view the demise of late Shri Devi Datt would not have any impact though he is stated to be survived by three sons and a daughter. One of the sons, the daughter and the son of the daughter are the present petitioners. This is a nomination made for the purposes of managing the estate for charitable purposes.

10. In view of the aforesaid position, there is no impediment to the grant of probate of the last Will and testament dated 27.10.1983 of the deceased Shrimati Ram Kesari. A probate be accordingly issued on the requisite stamp papers being filed by the petitioners.

11. The petition is allowed leaving the parties to bear their own costs.