Sarat Chandra Banerjee vs Nani Mohan Banerjee on 17 May, 1909
3. It is urged on behalf of the applicant that now that the matter is a contentious cause, it is governed by the Code of Civil Procedure and that, under the provisions of Order XXII, he is entitled to be substituted as plaintiff as the right to sue survives. The sole question that arises on this application is whether any right to sue has survived to the applicant. I do not think that it has. The right to a grant of administration is a personal right, and although the applicant, if the Will is established, may be the proper person to obtain a grant, this would be so, not by virtue of any right to administration, which he inherits from his father, but by virtue of the fact that as heir of his father to the residue he is the person most interested in the estate. The reasoning of Mr. Justice Harington in Sarat Chandra Banerjee V. Nani Mohan Banerjee 3 Ind. Cas. 995 ; 36 C. 799 seems to me to be equally applicable to the present application: in that case the executor named in the Will of which Probate was sought died before obtaining a grant, his widow sought to be substituted for him in the suit as being his heiress, and Mr. Justice Harington held that as the executor's right was derived under the Will, the right did not survive to his widow: in the present case the right which Hem Bhusan sought was a right from the Court and if he had obtained a grant, his title would have been derived from the Court and cannot, I think, devolve on his heir.