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5. On the other hand, it has been urged on behalf of the Respondent that:

(i) An order of a learned Single Judge allowing an application for substitution or for impleadment does not amount to a judgment under Clause 15 of the Letters Patent and an Appeal against the order is not maintainable;
(ii) In the case which arose before the Division Bench of this Court (Thrity Sam Shroff) the issue before the Court was whether an 1 2007 (4) Mh.L.J. 56 Chandka 6 A-1009-10-JUDGMENT application by which the legal representative of an executor sought substitution under Order XXII Rule 4A was maintainable. The issue as to whether upon the death of the sole executor, the legatee or a sole beneficiary under the will could seek substitution and for a conversion of the proceedings into one for the issuance of letters of administration was not in question;

11. In the judgment of a Division Bench of this Court in Thrity Sam Shroff vs. Shiraz Byramji Anklesaria & Anr, (supra), the will executed by a testatrix in 1989 was sought to be administered in a Petition filed in Chandka 12 A-1009-10-JUDGMENT 1993. Five executors appointed under the will had died. The petition had been amended after the death of the first two executors. However, no steps were taken after the death of the third executor. The applicant had not sought a continuation of the suit by substitution of herself in place of the deceased executors but had applied for various reliefs in the administration of the estate of the deceased. The Division Bench held that probate proceedings are essentially at the instance of the executors named in the will and can survive until the executors survive. If the sole executor dies or upon the death of all the executors named in the will no question would arise of the proceeding being kept alive as there would be no occasion to grant a probate. The Division Bench was of the view that such a procedure would die a natural death as a consequence of the non survival of any executor and the applicability of the provisions of Order XXII would not arise. The Division Bench relied interalia upon the judgment of the Calcutta High Court in Sarat Chandra Banerjee vs. Nani Mohan Banerjee1 That was a case where pending the hearing of a contested application for probate by a sole executor the executor had died. His widow as legal representative applied that her name be substituted for the deceased executor and the petition for probate be amended by substituting a prayer for the grant of letters of administration. The application was rejected on the ground that the right to sue did not survive and the suit stood abated. In Hari Bhusan 1 1909 Vol. III Indian Cases 995 (Calcutta) Chandka 13 A-1009-10-JUDGMENT Datta vs. Manmatha Nath Datta & Ors., a residuary legatee under a will had applied for letters of administration with a copy of the will annexed. During the pendency of the proceedings the legatee died and his son applied for being substituted in the place of the deceased father and to be granted letters of administration. The Calcutta High Court held that the right of the legatee to obtain a grant was personal and would not devolve on his heir. In Manekji Manchersha Javeri vs. Phiroze Boman Javeri,2, a learned Single Judge of this Court followed the decision of Harington J. of the Calcutta High Court in Sarat Chandra Banerjee (supra) and held that in the case of an application for probate no question of a right to sue arises at all. The learned Single Judge was of the view that when a petition is filed on the testamentary side for the grant of representation it is not a suit in any sense of the word for, if it remains non contentious. It does not even assume the form of a suit. Though Section 295 provides that the proceedings take as nearly as may be a form of the regular suit, that does not really render the proceedings a suit in the real sense of the term and no question would arise of the right to sue surviving on the death of the executor even though the executor had died after the testamentary proceedings had become contentious. These decisions were followed in the judgment of the Division Bench of this Court in Thrity Sam Shroff vs. Shiraz Byramji 1 1919 (Vol.II) Indian Cases 76 (Calcutta) 2 1970 Mh.L.J. 324 Chandka 14 A-1009-10-JUDGMENT Anklesaria & Anr., where the Court came to the conclusion that the proceedings for the grant of a probate under Section 295 are not proceedings in a suit. Following this, the Division Bench held that an application of the nature that was made before the learned Single Judge was not maintainable.

The Division Bench recognized that the impleading of a legatee in the place of the deceased executor would involve an alteration of the petition which was originally filed for the issue of the probate into one for the grant of letters of administration but held that this was a technicality not affecting the substance of the matters to be decided in the case.

14. The Supreme Court had occasion to consider a similar issue in Shambhu Prasad Agarwal & Ors. vs. Bhola Ram Agarwal.1 In that case the testatrix had by her will bequeathed her estate to a nephew. On the death of the testatrix the legatee filed a petition for probate. The legatee died during the pendency of the proceedings and on his death his heirs filed an application in the probate proceedings for substitution in place of the deceased legatee. Another application for amendment of the petition was filed by which it was prayed that instead of a probate, the legal heirs may be granted letters of administration. These applications having been dismissed and the order of dismissal having been confirmed in revision by 1 (2000) 9 SCC 714 Chandka 18 A-1009-10-JUDGMENT the High Court an appeal was filed before the Supreme Court. The Supreme Court noted that the legatee, it was true should have applied for the issuance of letters of administration and not for probate. However, this would not debar his heirs from getting the probate petition amended. The Supreme Court ruled that the view of the trial Court in rejecting the applications on the ground that the probate petition filed by the legatee related to his personal right and hence no right accrued to the appellants for substitution in his place was incorrect. The judgment of the Supreme Court lays down that while it is true that where an executor dies his heirs cannot be substituted because the executor possesses a personal right, this is not applicable where the heirs of a legatee apply for issue of letters of administration. The Supreme Court noted that it could not be disputed that the heirs of the legatee could file a petition for the issuance of letters of administration. Having regard to the time that had elapsed, the interest of justice would require that the proceeding should come to an end as early as possible and the appeal should not be rejected on what was regarded as being a "highly technical ground".

15. The judgment of the Supreme Court is therefore authority for the principle that the right to seek probate of a will executed by a deceased testator is personal to the executor appointed under the will. Upon the death Chandka 19 A-1009-10-JUDGMENT of the executor the heirs of the executor cannot be substituted in his place.

However, this would not debar the legatee and upon the death of the legatee his heirs from seeking substitution.