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9. This judgment cannot be considered as an authority on the status of an applicant under Section 263 of the Act, to conclude that a person who has applied for revocation of the Probate would be in the position of either a residuary legatee or an executor of the Will. In fact, in that case, since there was no executor, the residuary legatee took on the duty of an executor and had moved the court for grant of Letters of Administration. It is in that context that the court held that the rights of the residuary legatee were merely that of an executor of the Will and therefore on his demise his legal heirs could not be substituted.

"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."

But it is to be noticed that in the said case substitution was not permitted, as it was the executor who had expired and it was held that the proceedings could be continued only at the instance of other executors named in a Will and the proceedings would survive only till the executors survived. The moment the sole executor died or all executors died, the proceedings would come to an end and thus Order XXII of the CPC would not be applicable at all. Relying on the judgment of the Apex Court in Diwan Brothers Vs. Central Bank of India AIR 1976 SC 1503, it was held that merely because the provisions of the CPC are made applicable to a proceeding, that by itself will not transform such proceedings into a suit within the meaning of the said expression under the Code. No help can be derived by the applicants from this decision of the Bombay High Court.

17. Having heard both the counsels and considered the cited judgments, it is apparent that an applicant seeking revocation of a Probate under Section 263 of the Act cannot be equated with an executor of a Will or a person who seeks Letters of Administration or Probate of the Will in the capacity of an executor in case no such executor is named in the Will. This is because the proceedings under Section 276/278 of the Act are different in their very nature from proceedings under Section 263 of the Act. The former is founded on the Will whereas the latter is founded on the grounds mentioned in the provision, to be moved by any one who had some interest in the estate of the deceased but was unaware of the proceedings for grant of Probate or Letters of Administration. An executor draws his right to seek Letters of Administration or Probate of the Will only from the Will. Therefore, it is personal to him. Section 222 of the Act also limits the grant of Probate only to an executor appointed by the Will. That is also the reason why on the demise of an executor, there can be no substitution of his legal heirs in his stead. Under Section 226 of the Act, when the Probate has been granted to several executors and one of them dies, the entire representation of the testator will accrue to the surviving executor or executors. On the other hand, the objectors are those who are claiming rights independent of the Will. The provisions relating to the executors cannot therefore apply to the objectors. Even when the Probate is granted or Letters of Administration issued, it becomes the obligation of the executor/petitioner to execute the Will and he cannot delegate it to someone else, as the Succession Certificate is issued to the executor alone. If there are others named in the Will as executors, anyone of them can be substituted.