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23. In Sarat Chandra Banerjee v. Nani Mohan Banerjee reported in 1909 Vol.III Indian Cases 995 (Calcutta), pending the hearing of a contested application for probate by a sole executor, the executor died and his widow as legal representative applied that her name may be substituted for the deceased executor and that the petition for probate may be amended by substituting a prayer for letters of administration. The said application came to be rejected on the ground that the right to sue does not survive and the suit had abated.

...in the case of an application for probate no question of any right to sue arises at all. No doubt, when one of several executors or administrators dies, "all the powers of the office become vested in the survivors" as laid down in Section 312 of the Succession Act. That, however, is very different from saying that the right of an executor to apply for probate is a right to sue, or that when an executor dies pending application for probate a right to sue survives. First and foremost, it must be borne in mind 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; and secondly, if it remains non-contentious, it never assumes even the form of a suit. When a petition becomes contentious, what Rule 710 of the Rules of this Court lays down is that, upon an affidavit in support of the caveat being filed, the proceedings are to be numbered as a suit and the procedure therein should, as nearly as may be, be according to the provisions of the Code of Civil Procedure. Section 295 of the Succession Act enacts that the proceedings then take, as nearly as may be, "the form of a regular suit". That, however, does not actually make the proceedings a suit in the real sense of the term, and no question of the right to sue surviving on the death of the executor arises, even though the executor dies after the testamentary proceedings have become contentious.
Apparently, the Learned Single Judge of Gujarat High Court has proceeded on the basis that the probate proceeding is a suit within the meaning of the said expression under the Code of Civil Procedure which is contrary to the very statutory provision comprised under Section 295 of the said Act and the law laid down in that regard by the Apex Court, and even by the Gujarat High Court in Smt. Multivahuji's case (supra).

28. Similarly, in Sarat Chandra Banerjee's case (supra), it was held that in a case where pending the hearing of a contested application for probate by a sole executor, the executor died and his widow as legal representative applied that her name may be substituted for his and that the petition for probate may be amended by substituting a prayer for letters of administration, the same was held to be not maintainable and was liable to be rejected because the right to sue did not survive and the proceedings had abated.

30. Considering all the above decisions, it is abundantly clear that the probate proceeding, though on being contested, becomes contentious proceeding, and therefore, it is to be proceeded in the form of a suit, but that by itself does not transform the proceeding into a suit under the Code of Civil Procedure. The provisions of Code of Civil Procedure would apply to such proceedings to the extent they are not inconsistent with the provisions of law comprised under the said Act. Section 226 of the said Act specifically provides that in case of death of an executor, representation would survive to the surviving executor or executors, as the case may be. At the same time, Section 222 clearly specifies that the probate can be granted only to an executor. In other words, the probate proceedings are essentially at the instance of the executors so named in the Will, and can survive till the executors survive. Moment the sole executor dies 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. Such a proceeding would die a natural death as a consequence of non survival of any executor. In such circumstances, the question of applicability of Order XXII of the Code of Civil Procedure does not arise at all.