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8. In the case of Haripada Saha v. Gobinda Chandra Saha, (1947 (51) Cal WN 917), upon the death of a sole executor during the pendency of probate proceedings it has been held that his heir is not entitled to continue the proceedings by substituting a prayer for grant of letters of administration to him in the place of probate. The Court was of the view that where the sole executor who died during the pendency of the probate proceedings was also the sole legatee, the proper course for his heir was to make a fresh application for a grant to him of letters of administration in his own right under Section 233 of the Indian Succession Act, 1925.

15. But it must, at the same time, be recognised that the impleading of the legatee or person interested in the place of the deceased executor would involve an alterat on of the petition which was originally filed for the issue of probate, into one for the grant of letters of administration. But that "is a technicality not affecting the substance of the matters to be decided in the case."

16. It would be pertinent to recall in this context that Harrington, J. had similarly observed in the case of Sarat Chandra Banerjee v. Nani Mohan Banerjee, (1909 ILR 36 Cal 799) (supra) that the applicant therein was required to satisfy the Court of two things i) that the is the person to whom Letters of Administration ought to be granted, and ii) that the Will was duly executed. Indeed in ILR (1948) 1 Cal 300 which approved of the decision in (1909) ILR 36 Cal 799 (supra), the learned Judges regarded that such an alter- ration of an application for probate was a mere technicality, which could not invalidate the subsequent grant of letters of administration in the application for Probate. In that case the sole executrix who was also the sole legatee under the Will died during the pendency of Probate proceedings. Her heir, instead of making a fresh application for grant to him of letters of administration in his own right, continued the proceedings initiated by his predecessor and was granted letters of administration with the will annexed. At a later stage when this procedure was assailed, the learned Judges held that that was merely a defect of form and not of substance, and they refused to set aside the grant. With regard to the substance of the proceedings there could thus be no objection to an application for issue of probate being converted into one for the grant of letters of administration with a copy of the will annexed, on the death of the executor, who has died after applying for probate and before it was granted to him.

17. For much the same reasons discussed in aforesaid decisions of the Madras High Court, with which I am in complete agreement, Madras view seems to me to be more acceptable. If it is competent for a legatee to file fresh application for grant of Letter of Administration in a case where the Executor dies during the the pendency of a probate proceedings, I wonder why a legatee, already on record as a defendant in a probate proceedings, as in the instant case before us, would not be competent to continue the proceedings for grant of Letters of Administration, in place of grant of probate, by transposing him as a plaintiff in the suit, treatment the relevant proceedings to have been instituted from the date of filing the relevant applications for transposing him as a plaintiff and for amendment of the plaint for the said purpose, in the light of the observations of the Supreme Court in B. Banerjee v. Smt. Anita Pan, . The Supreme Court in the said decision has held, in the facts and circumstances therein, that where two interpretations are possible that which validates the statute and shortens letigation should be preferred to the one which invalidates or proliferates. Their Lordships therein were satisfied that, as far as possible, courts must avoid multiplicity of litigation. Any interpretation of a statute which will obviate purposeless proliferation of litigation without whittling down the effectiveness of the protection for the parties sought to be helped by the Legislation, should be preferred to any literal, pedantic, legalistic or technically correct alternative. Their Lord-