1. This is an application by affidavit for an order that the name of the applicant be substituted as executor in place and stead of Manekji Munchersha Javeri, deceased, and that the necessary amendments be allowed to be made in the petition for Probate filed by the said Manekji Munchersha Javeri in respect of the estate of his brother Bomanji Munchersha Javeri. Bomanji died on June 27, 1967, leaving a

"Will dated February 16, 1958. In Clause 1 of the Will it was stated that the testator Bomanji owned certain moveable and immoveable properties jointly with his brother and sisters as co-tenants. Clause 2 of his "

Will which is material for the purpose of the present order is in the following terms:

Clause 2. AFTER payment of all necessary expenses I GIVE AND BEQUEATH all the rest and residue of my property whatsoever and wheresoever and to which I am or may become entitled to absolutely to the same surviving co-tenants referred to above, and in case there is no such surviving co-tenant then to Phiroze (Tingchu) Bomanji Javeri AND I APPOINT the surviving Co-tenants, Executors of this my Will and if there are no such surviving Co-tenants then I APPOINT Phiroze (Tingchu) Bomanji Javeri, Sole Executor of this my Will.

On December 20, 1967, the said Manekji Munchersha Javeri who was the brother of the deceased Bomanji and one of the surviving co-tenants, applied for probate of the said Will of Bomanji, reserving the rights of the deceased's sisters Tehmina Munchersha Javeri and Cooma Munchersha Javeri, the other surviving co-tenants to apply for probate later on. Probate duty as well as estate duty was paid by the said Manekji Munchersha Javeri, but before a grant of probate could be made to him, the said Manekji died on April 17, 1968. The said Tehmina and the said Cooma have, due to their old age and ill-health, expressed their inability to apply for probate of the Will of the estate of Bomanji and have, by a Deed of Renunciation dated July 9, 1968, renounced their rights in respect of the same. It is under these circumstances that the said Phiroze, mentioned in clause 2 of the Will of Bomanji, has made the present application that he be substituted in place of the said Manekji as far as the petition for Probate of the "Will of Bomanji is concerned.

2. It was sought to be contended by Mr. Mehta on behalf of the applicant that by virtue of the provisions of clause 2 of the "Will of Bomanji, the applicant is entitled to apply for probate of the "Will of the said Bomanji, and that in order to avoid probate duty and estate duty having to be paid over again pending the obtaining of refund of the amounts already paid by the said Manekji, instead of the applicant being compelled to file a fresh petition, his name should be substituted in the petition for Probate already filed by the said Manekji. The application is sought to be made under the provisions of Order I, Rule 10(2), of the Civil Procedure Code which, it is contended, would be applicable in view of Section 268 of the Indian Succession Act.

3. I do not accept the contention of Mr. Mehta for the applicant that his client is entitled to apply for probate of the Will of the said Bomanji. The con-eluding portion of clause 2 of the Will of Bomanji on which he relies appoints the applicant sole executor only "if there are no surviving co-tenants", an event which, in my opinion, has not occurred. On the facts of the present case, there are surviving co-tenants viz. the said Tehmina and the said Cooma, but they have renounced their right to apply for probate. As a matter of plain language, the concluding portion of clause 2 of the Will cannot come into play in a case in which there are surviving co-tenants but they have merely renounced their right to obtain probate. The said Phiroze would, in my opinion, .therefore have to apply for the grant of Letters of Administration With the Will annexed, and is not entitled to apply for probate. In order that a person may be entitled to a grant of Letters of Administration, it is necessary for him to establish his right to obtain that grant and his position is entirely different from that of a person who derives title as executor under a will and applies for probate as such. It is no doubt true that, in the present case, Phiroze is mentioned in the Will of Bomanji as the person who is to be the sole executor in a certain contingency, but as that contingency has not occurred, the question which I have to consider must be viewed on the footing that there was no such provision. The right of a person to obtain a grant of Letters of Administration is quite different from the right of a person who derives title as Executor under a Will to obtain a grant of Probate. The application for the grant of Letters of Administration would need certain averments which would not be necessary in the case of an application for the grant of probate by a person named in the Will as executor. Under the circumstances, I decline to make an order for Substitution on the present application. I am not called upon to decide whether or not an order for substitution can be made in a case in which, on the death of a proving Executor pending the grant of probate, another person who is named in the Will as Executor applies that his name be substituted in the petition for probate. Nothing in this Order should be construed as expressing any opinion on that point.

4. Having considered the matter on principle, apart from authority, I will now turn to the authorities that were cited before me. Before I turn to them, however, I may mention that there are two unreported Orders made on the testamentary side, without recording any reasons, one passed by my brother K.K. Desai on August 29, 1961, in Nowroji N. Adajania v. Ardeshir N. Adajania (1961) T. & I.J. Petition No. 494 of 1960, decided by K.K. Desai J., on August 29, 1961 (Unrep.) and the other by my brother Tulzapurkar on September 11, 1967, in Smt. Putalabai Ramchandra Dalvi v. Bhiku Ramchandra Dalvi (1967) T. & I.J. Petition No. 406 of 1966 (Suit No. 20 of 1966) decided by Tulzapurkar J., on September 11, 1967 (Unrep.) in which orders for substitution have been refused by them. I am informed by the Testaraentary Registrar that there is not a single case on the record of his office in which an order for substitution has been made. Reliance was sought to be placed by Mr. Mehta on behalf of the applicant on a decision of the Gujarat High Court in the case of Pravinsinhji v. Mangalsinhji in which the same application as has been made in the present case was granted by that Court, the view taken being (paras. 6-9) that an executor in. applying for probate is not fighting a personal action, but is applying for probate in a representative capacity, that the maxim, action personcdis moritur cum persona does not apply to such a case, and that in the event of his death, the name of another person can, therefore, be substituted for the purpose of obtaining a grant of Letters of Administration with the will annexed. I am afraid, I cannot agree with the view taken by the Gujarat High Court in the said case that the position of a petitioner for probate is somewhat similar, though not exactly the same, as that of a plaintiff under Order I, Rule 8 of the Civil Procedure Code. It is true that when an executor succeeds in obtaining a, grant, he represents the estate, but at the stage when he makes an application for obtaining a grant he represents no one and is not acting in a representative capacity. The representative capacity of executor who have already proved a Will is recognized by Section 226 of the Succession Act. In. my opinion, however, a mere application for obtaining the grant does not place an executor in any situation similar to the one contemplated by Order I, Rule 8 of the Civil Procedure Code, as he does not represent anybody when he makes that application. There is another decision which was referred to by Mr. Mehta, and that is, the decision of the Calcutta High Court in the case of Sarat Chandra Banerjee v. Nani Mohan Banerjee (1909) I.L.R. 30 Cal. 799, which is against the view for which Mr. Mehta has contended. The facts of that case were that an application for probate was made by a sole executor and a caveat was entered and the matter was set down as a contentious case. Pending its hearing, the executor died. His widow then applied to have her name substituted for his and prayed that the petition for probate be amended by substituting a prayer for the grant of Letters of Administration with a copy of the will annexed, in place of the prayer for the grant of probate. That application was refused on the ground that the right which the applicant before the Court had was different from, the right of the original applicant, and that the right to sue had not survived and the suit had abated. Harington J. stated in his judgment in the said case (at p. 801) :

But the right, which the present applicant has, is an entirely distinct one. She asks to be appointed to represent the deceased by the Court, and claims no right derived from any appointment by the testator.

She must satisfy the Court of two things-(i) that she is the person to whom letters of administration ought to be granted; and (ii) that the will was duly executed.

I agree with those observations of Harington J., and I base my decision on that very ground. I, however, do not agree with the further ground on which he based his decision, viz. that the suit had abated because the right to sue did not survive. The conclusion at which the Calcutta High Court has arrived in the said case is in conformity with the conclusion at which I have arrived, but in my opinion, 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.

5. As far as Mr. Mehta's argument based on Section 268 of the Indian Succession Act is concerned, even if one were to take the view that that section applies to a non-contentious testamentary proceeding, a question which it is not necessary for me to decide in the present case, there is no provision of the Code of Civil Procedure which Mr. Mehta has been able to point out which Would justify an order for substitution in the present case. Looking at it from any point of view, therefore, the present application must fail and be dismissed.