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10. The aforesaid would show that the proceeding for grant of Letters of Administrator is for appointment to the personal office as the administrator of the estate of the deceased. Such administration even when granted, ceases with the demise of the administrator and it is not as if the legal heirs of the administrator so appointed by the court are entitled to continue with the administration which was vested by the court in the administrator.

11. Viewed in this light, the proceeding for grant of Letters of Administration is for a right to personal office. If that is so then the question of the right to sue surviving to the legal heirs of the petitioner does not arise. The right to the grant of Letters of Administration is a personal right and does not survive. Mr Justice Harington in Sarat Chandra Banerjee Vs Nani Mohan Banerjee ILR 36 Calcutta 799 held that in a case where the executor named in the Will, of which probate was sought dies, before obtaining grant, his widow claiming to be his heir could not be substituted. It was held that as the executor's right was derived under the Will, the right did not survive to the widow.

13. The Division Bench of the Bombay High Court in Thrity Sam Shroff Vs Shiraz Byramji Anklesaria and Aspi Byramji Anklesaria AIR 2007 Bombay 103 upon the demise of all the executors of the Will who had applied for probate held that a probate proceedings even if contested is not transformed into a suit under the CPC and the provisions of the CPC would apply to such proceedings only to the extent they are not inconsistent with the provisions of law comprised in the said Act. It was further held that the moment the sole executor or all the executors die, the question of proceeding being kept alive does not arise at all as there would be no occasion in such a case to grant any probate. It was held that such a proceeding would die a natural death as a consequence of non-survival of any executor and the question of applicability of Order 22 of the CPC does not arise at all. It was further held that even the provisions of Order 1 Rule 8 of the CPC would not be applicable in such cases and further that in such cases there is no right to sue which can survive. Another single Judge of the Bombay High Court in Manekji Manchersha Javeri Vs. Phiroze Boman Javeri MANU/MH/0132/1969 also took the view that there could be no substitution of the legatee on the demise of the executor.

24. In fact the Apex Court in Shambhu Prasad Agarwal v. Bhola Ram Agarwal 2000(9) SCC 714 also disapproved of the dismissal of the applications for substitution of the petitioner in a probate case on the ground of the petitions having been filed in a personal right. It was held that where an executor dies though his heirs cannot be substituted because the executor possessed personal right but this is not applicable where the heirs of a legatee apply for issuance of a letters of administration. It was held that since there is no dispute that the applicants could file an independent petition for issuance of letters of administration, there can be no objection to allow them to continue the petition.