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5. Mr. A. Ramachandran appearing for the appellant contests the correctness of this view, for the reason that an application for probate would neither be regarded as anything but personal to the executor, nor could a proceeding therefor be similar to a representative action coming within the provisions of Order 1 Rule 8 C.P.C., the interests of the various legatees in the estate under the will not being identical. In support of this contention, learned counsel places considerable reliance on the decision in Saratchandra Banerjee v. Mani Mohan Banerjee, ILR 36 Cal 799, Where on facts almost similar to the present case, Harrington J. declined the application of the legatee to substitute her name in the place of a deceased executor and permit her to obtain letters of administration in the same petition. It was pointed out in that case that the words "right to sue" in Order XXII Rule 3 C.P.C. could mean only 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 as nobody but the executor could apply for probate, there was no survival of that right. It was further held that a probate and letters of administration were distinct reliefs as the executor's right to probate was derived by virtue of the appointment made in the will by the testator, whereas an administrator could obtain the right to administer the property of a deceased testator by virtue only of the appointment made by the Court.