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1. This is a civil revision application against an order passed by the learned Civil Judge, Senior Division, Morvi, allowing an Amendment of the prayer by the substituted applicant in Probate Case No. 8/1957 on the file of the learned Judge. The matter arises this way:-

The deceased testatrix Bai Jivubai made a will dated 14th December, 1946, appointing one Jadeja Shivubha Madhavsang as an executor of her said will. After the death of the testatrix, Shivubha applied for the probate of the will on 6th February, 1957. The four opponents to the said application were the heirs of the deceased and each of them was a beneficiary under the will of the deceased testatrix. The applicant executor died pending probate proceedings on 17th January, 1960. On the 25th January, 1960, opponent No. 1 in the original Probate Application, Jadeja Mangalsinhji Shivsinhji, who is also opponent No. 1 in the present revision application applied to the Probate Court that he be transposed as a plaintiff in place of the deceased executor. That application was allowed and Jadeja. Mangal-sinhji Shivsinhji was allowed to be substituted as a plaintiff in place of the deceased executor and to continue the proceedings as the plaintiff-applicant. On 28th of January, 1960, the substituted applicant Jadeja Mangalsinhji Shivsinhji applied for an amendment of the prayer in the probate petition, which became necessary on the applicant having been substituted, for in the original petition for probate, the executor being the applicant, the prayer was for the issuing of a probate of the Will of the deceased. The substituted applicant not being an executor was not entitled to probate but could only be entitled to letters of administration with the will annexed. In these circumstances, the prayer in the original probate petition was sought to be amended by substituting a prayer for the grant of letters of administration with a copy of the will annexed. An order was passed by the learned Civil Judge, Senior Division, Morvi, on the 26th April, 1960, allowing this amendment of the prayer. The present revision application is directed against this order, allowing the amendment of the prayer by the original opponent No. 4, who was one of the heirs of the deceased. The order of substitution of the opponent No. 1 in place of the deceased executor as plaintiff is also challenged.
"In my opinion, the right to sue in Order XXII means the right to bring a suit asserting a right to the same relief which the deceased plaintiff asserted at the time of his death, and that a right to obtain probate of a will is a right different in its nature from a right to be appointed by the Court to administer the deceased's estate."

In the case before Mr. Justice Harrington, the executor who was also the residuary legatee under the will died pending proceedings for probate and an application for substitution in the place of the executor w'as made by the widow and heir of the executor claiming a beneficiary interest in the estate of the deceased as the heir of the residuary legatee. While refusing the application of the widow, Mr. Justice Harington observed as above. With respect, I am unable to agree with the view expressed by Mr. Justice Harington, for that would be attaching importance to the form rather than to the substance of an action of an application for probate by an executor. The reasoning in this case was also dissented from by the learned Judges of the Madras High Court in ILR 56 Mad 346 : (AIR 1933 Mad 114) referred to above. Mr. Justice Reilly at p. 385 of the report (ILR Mad) : (at p. 117 of AIR) observed that the consideration of the substance of an action in which an executor applies for a probate was overlooked by Mr. Justice Harington.

"but in an appeal in a case where the judgment appealed against may operate as one in rem, different considerations will arise."

Actually the Court allowed substitution in place of the executor who had died at the appellate stage. With great respect, the fact that an application for substitution was made at the appellate stage, should not make any difference to the principle, for if the executor is fighting a personal battle and for a personal right, the nature of that right remains the same, whether it is fought in the first Court or in the appellate Court. In this Calcutta case, the testator one Radha Krishna Maity died leaving a will of which he had appointed an executor. That executor applied for probate of the will. The widow of the testator, by name Chandramani Maity, produced a codicil under which the original executor was removed and she became legatee for Rs. 10,000/- due to the deceased on account of his life policy. Under the codicil, the first executor was a son of tho testator, viz., Barendra Natn Maity, who predeceased the testator. The next executor was Sachindra Nath Maity, who had renounced his appointment as an executor. So the only effective executrix was the widow Chandramani Maity. In the probate proceedings of the will and the codicil, the trial Court granted probate of the will and dismissed the application of Chandramani for the probate of the codicil. Against that decision Chandramani appealed and during the pendency of the appeal, she made a gift of the legacy, which she was to receive under the codicil to the two sets of applicants before the appellate Court, Chandramani died after making the said gift. The donees of the gift made an application for substitution at the appellate stage in the place of the deceased Chandramani for permission to carry on the appeal. The Court held that the appli-cants were the legal representatives of the deceased Chandramani. With great respect, if the view of Mr. Justice Harington in ILR 36 Cal 799 referred to above, was accepted, then the right which Chandramani was prosecuting at the appellate stage was the right to obtain the probate of the codicil in her capacity as an executrix. That she happened to be a donee under the codicil was an accident. Therefore, it is difficult to appreciate the distinction which Suhrawardy and Graham, JJ., attempted to draw between the case before Mr. Justice Harington and the case before them.

In my view, the actual decision of Suhrawardy and Graham, JJ., is contrary to the view expressed by Mr. Justice Harington. In the result, aa I read the decision of Suhrawardy and Graham, JJ., it is contrary to the view expressed by Mr. Justice Harington. This case, therefore, not only lends no assistance to Mr. Nanavaty but on the contrary, as I read it, goes against him.

13. Next, my attention was drawn by Mr. Nanavaty, to a decision of Mr. Justice Greaves of the Calcutta High Court in the case ot Haribhusan Datta v. Manmatha Nath Datta, ILR 45 Cal 862 : (AIR 1919 Cal 197). In that case, one Sreemutty Brityamani Dassee died on the 19th May, 1914. On the 23rd June, 1914, one Hem Bhusan Datta applied for a grant of the letters of administration with a copy of the will annexed oi the estate of the deceased. After the caveats were entered by one Manmatha Nath Datta and others on the 4th December, 1914, the matter was set dpwn as a contentious cause. Hem Bhusan Datta died leaving Haribhusan Datta as his heir and representative. The question then arose whether any right to sue had survived to the applicant. Mr. Justice Greaves held that the right to a grant of administration was a personal right derived from the Court, and although the applicant, if the will was established, might be the proper person to obtain % grant, this would be not by virtue ot any right of administration which he inherited from his father, but by virtue of the fact that, aa heir of the residuary legatee, he was the person most interested in the estate. After referring to the decision of Mr. Justice Harington in ILR 36 Cal 799 referred to above, Mr. Justice Greaves following the same decision rejected the application for substitution. The case before Mr. Justice Greaves was not a case where any substitution was asked for in the place of an executor appointed under the will. So, that case has no direct relevance to the case before me. But in so far as Mr. Justice Greaves relied on the decision of Mr. Justice Harington in ILR 36 Cal 799, my observations in this regard will be same as the observations which I have made in regard to the decision of Mr. Justice Harington in ILR 36 Cal 799 referred to above. I am, therefore, unable, with great respect, to follow the reasoning of Mr. Justice Greaves. In fact, in Mt. Phekni v. Mt. Manki, AIR 1930 Pat 618, Fazl Ali and Chatterji, JJ., though trying to distinguish the decisions of Harington, J. and Greaves, J., in effect did not follow the view of Mr. Justice Greaves and allowed the substitution at the appellate stage. As I have stated earlier, on principle it should make no difference whether the substitution has been asked for in the trial Court or at the appellate stage. Mr. Justice Chatterji, one of the members of the Division Bench, tried to distinguish the decision of Mr. Justice Greaves on the ground that the case which was before Mr. Justice Greaves related to an application made at the trial stage and that the application before them was made at the appellate stage. With great respect, on principle I am unable to appreciate this distinction in the contest.