Das Gupta, J.:— The appellant is the son of Jung Bahadur Missir, who, as executor of a will, said to have been executed by one Sahadari, who died on September 4, 1946, filed an application for probate of the said will on September 13, 1946. On November 26, 1947, the date of hearing of the application for probate was fixed as January 5, 1948. On December 19, 1947, however, Jung Bahadur died, so that the hearing could not be taken up on January 5. On January 14, 1948, the present appellant filed an application for being substituted in place of Jung Bahadur, the executor, or at least to be allowed to intervene and carry on the proceedings “which should be a proceeding for letters of administration” as a beneficiary and person interested under the will. The probate court rejected this application and passed the following order:—
* * * * * The proceedings abate and are disposed of accordingly.
On appeal against this order, Mr. Chandra Sekhar Sen has contended that the application made by an executor for probate is really in the nature of a representative action on behalf of all the persons benefited under the will and consequently on his death it is proper that the persons interested or any of them should be allowed to continue those proceedings. I would have no hesitation in accepting this contention had I been convinced that this is really in the nature of a representative suit. There can be no doubt that the action brought by the executor is calculated to benefit all the persons who stand to gain under the will. The relief which the executor can obtain is given in the form of a probate granted of the will. It is certainly not open to anybody else to obtain this relief. I do not see how, if the other persons who might benefit, could not have legally obtained the same relief as the executor; the executor can be said to be acting in a representative capacity for the beneficiaries. It is important to remember that the executor is the selection of the testator. Other persons may, in suitable circumstances, obtain letters of administration with a copy of the will annexed and when they do so they derive their authority entirely from the court and not from the testator. It is not open to the court to consider the suitability or otherwise of the executor, but, when letters of administration are asked for, the court can and will go into that question. The necessary conclusion from all this is that the relief, which an executor asks for and obtains on an application for probate, is different not only in form but in substance from the relief asked for and obtained by beneficiaries applying for letters of administration with a copy of the will annexed.
It is for this reason that I find myself unable to accept as correct the reasoning in the decision in Rama Naidu v. Rangayya Naidu where, when an executor died during the pendency of an appeal preferred by him against the dismissal of his suit to establish the will, it was held that his sons who were entitled to benefit under the will, were entitled to prosecute the appeal. In coming to this conclusion, the learned Judges of the Madras High Court were of opinion that the action brought by the executor for probate is in the nature of a representative suit and so any of the persons he represented may carry on the proceedings—
with the unessential modification that the prayer must then be for letters of administration with the will annexed.
I am of opinion that the right of suit of the executor does not continue on his death in his son and also that the beneficiaries under the will have no right to intervene in these proceedings as persons on whose behalf the action was brought. I am fortified in this view by the authority of a recent decision of this Court in the case of Hari Pada Shaha v. Gobinda Chandra Shaha. In this case, the sole executor, who died during the pendency of the probate proceedings, was also the sole legatee, and is heir, instead of making a fresh application for a grant to him of letters of administration in his own right under s. 233 of the Indian Succession Act, was allowed to continue the proceedings without objection till the close of the hearing and, was granted letters of administration. The learned Judges held that this was merely a defect of form and refused to set aside the grant. It was, however, definitely held that the proper course for the heir was to make a fresh application for a grant to him of letters of administration. Two earlier authorities, in which the same view was taken, may be mentioned. There are the decisions Sarat Chandra Banerjee v. Nani Mohan Banerjee and Haribhusan Uatta v. Manmatha Nath Datta.
In the present case, it is still quite open to the present appellant to file an application for letters of administration with a copy of the will annexed. The fact that the proceedings for probate instituted by the executor have abated will not present any obstacle in the way of the legatee or legatees obtaining proper relief under s. 233 of the Indian Succession Act.
I am of opinion that the appellant cannot either be substituted in place of the executor nor can he be allowed to intervene in the proceedings and prosecute them in an amended form, namely, for letters of administration.
The appeal is, therefore, dismissed with costs. The hearing fee is assessed at two gold mohurs to be distributed equally among the two sets of appearing respondents.
Guha, J.:— I agree.
Appeal dismissed.
K.B