NARAYAN CHANDRA SIL, J. ( 1 ) THIS is to consider an application filed by Smt. Chandrakala agarwalla, Dipak Agarwalla, Sandip Agarwalla and Smt. Nina Jhunjhunwala for an order that the Testamentary Suit Nos. 3 of 1999 has since abated or alternatively be dismissed on the ground of non-payment of ad valorem Court-fees. There is another alternative prayer for an order that if the suit is not dismissed, the death of Santosh Kumar Agarwalla, predecessor-in-interest of the petitioners be recorded and the petitioners be substituted as defendants in place of Santosh Kumar Agarwalla. It is stated further that on December 23, 1997, the application being P. L. A. No. 295 of 1997 was filed by Arun Kumar jhunjhunwala for grant of probate on the strength of the alleged Will dated 9th july, 1987 executed by the deceased Bhagwati Prasad Agarwalla. Bhagawati died leaving two sons namely Santosh Kumar and Prem Kumar and the purported Will is in favour of Prem Kumar to the exclusion of his other son santosh Kumar (for the sake of brevity the surname is not being mentioned ). Santosh Kumar filed a caveat in the said application on 28. 4. 1988 and in support of that an affidavit was filed on 7. 9. 1998. Accordingly, the P. L. A. No. 295 of 1997 became contentious and turned to be T. S. No. 3 of 1999. Santosh Kumar, a Hindu governed by Mitaksara School of Hindu Law died intestate on 27th april, 2002. The Solicitor M/s. Meharia and Company informed the death of santosh Kumar to the Solicitor and Advocate Mr. R. L. Gaggar of the plaintiff. No reply was received by the petitioner's Solicitor from the plaintiff or from his advocate-on-Record nor did the plaintiff take any step for substitution of heirs of Santosh Kumar in the record of the suit. On August 12, 2002, the plaintiff filed an application for cancellation of the affidavit in support of caveat affirmed by Santosh Kumar which was disposed of by order dated January 3, 2003. Thereafter the suit never appeared to the daily list of any Bench of this Court. It is stated further that the present petitioners are the legal heirs of the deceased santosh Kumar and as such they have the right to oppose grant of probate of the alleged Will. Thereafter the suit never appeared to the daily list of any Bench of this Court. It is stated further that the present petitioners are the legal heirs of the deceased santosh Kumar and as such they have the right to oppose grant of probate of the alleged Will. It is alleged further that the plaintiff has knowingly not taken any step for substitution of the legal representatives of the deceased Santosh kumar within the time as prescribed by law and as such the present suit having been abated should be dismissed. It is also stated that in the absence of any proof for payment of ad valorem Court-fees the suit is also liable to be dismissed. ( 2 ) THE petition has been contested by the plaintiff by filing an affidavit-in-opposition in which the material allegations are denied and it is inter alia stated that with the death of Santosh Kumar, caveator, the said caveat automatically stands discharged and as such his Solicitor M/s. Meharia and Company ceased to have any power or authority to proceed with the matter. It is further stated that accordingly the purported letters dated 17th July, 2002 and 19th July, 2002 are without any authority. It is also denied that the petitioners are the legal representatives of the deceased Santosh Kumar. ( 3 ) AFFIDAVIT-IN-REPLY was also filed on behalf of the petitioners. ( 4 ) IT is argued by the learned Advocate for the petitioners that the moment the P. L. A. being No. 295 of 1997 became contentious and turned to be a suit the code of Civil Procedure becomes applicable. The learned Advocate for the petitioners has thus referred to the provisions of Order 22 Rule 10a of the Code of Civil Procedure which deals with the duty of a pleader to communicate to court the death of a party, in order to substantiate the case of the petitioners that despite the intimation of the death of Santosh Kumar given to the Solicitor of the plaintiff no action had been taken by the plaintiff. ( 5 ) THE learned Advocate for the petitioners has also referred to Rule 28 of chapter XXXV of Original Side Rules. ( 5 ) THE learned Advocate for the petitioners has also referred to Rule 28 of chapter XXXV of Original Side Rules. The said Rule 28 reads as under :"upon the affidavit in support of the caveat being filed (notice whereof shall immediately be given by the caveator to the petitioner), the proceedings shall, by order of a Judge upon application by summons be numbered as suit in which the petitioner for probate or letters of administration shall be the plaintiff, and the caveator shall be the defendant, the petition for probate or letters of administration being registered as and deemed a plaint filed against the caveator, and the affidavit filed by the caveator being treated as his written statement in the suit. The procedure in such suit shall, as nearly as may be, be according to the provisions of the Code (Forms Nos. 14 and 15)". ( 6 ) THE learned Advocate for the respondent/plaintiff submits that the present application being G. A. No. 543 of 2003 was filed only after the application being G. A. No. 3216 of 2002. It is also pointed out to me that in the application being G. A. No. 3216 of 2002 the plaintiff made the prayer to the Court that with the death of Santosh Kumar his name may be deleted and the suit should be treated as non-contentious one. It is also prayed in that application that affidavit in support of the caveat affirmed by the defendant Santosh Kumar may also be treated as cancelled. It is argued by him that the entire matter of the defendant Santosh Kumar died down with his death. It is pointed out by the learned Advocate for the plaintiff that the petitioners did not press the ground for non-payment of Court-fees by the plaintiff. ( 7 ) IN reply the learned Advocate for the petitioners has referred to the provisions of section 306 of the Succession Act. ( 8 ) I have considered the arguments placed by the learned Advocates for both the parties. There can not be any denying of the fact that the P. L. A. has turned into the suit the moment Santosh Kumar came forward to contest the same and accordingly the Code of Civil Procedure has come into the picture so far the proceeding of the suit is concerned. There can not be any denying of the fact that the P. L. A. has turned into the suit the moment Santosh Kumar came forward to contest the same and accordingly the Code of Civil Procedure has come into the picture so far the proceeding of the suit is concerned. There is no denying of the fact rather it is admitted by the plaintiff in their affidavit-in-opposition that they had received the intimation of the death of Santosh Kumar but challenged the authority of the Solicitor of the deceased Santosh Kumar ignoring the provisions of Order 22 Rule 10a of the Code of Civil Procedure. Thus, despite such intimation the plaintiff refrains himself from taking any action and thereby to substitute the legal heirs of the defendant Santosh Kumar. It is of course denied in the affidavit-in-opposition that the petitioners are not the legal heirs of santosh Kumar but no prima facie proof to substantiate that claim has been placed before me by the plaintiff. ( 9 ) THE question of ad valorem Court-fees in advance has not been pressed by the petitioners at the time of argument and thus the same shall remain open to be decided at the time of final hearing. ( 10 ) SECTION 306 of the Succession Act referred to by the learned Advocate for the petitioners reads as under : "all demands whatsoever and all rights to prosecute or defend any action or special proceeding existing in favour of or against a person at the time of his decease, survive to and against his executors or administrators; except causes of action for defamation assault, as defined in the Indian Penal Code, or other personal injuries not causing the death of the party; and except also cases where, after the death of the party, the relief sought could not be enjoyed or granting it would be nugatory". Thus, on plain reading of the above provisions of section 306 of the Indian succession Act it is clear that the legal representatives of the defendant Santosh kumar have every right to defend the case of their predecessor and the cause of action in this regard still survives so far the interest of the present petitioner is concerned. And this is why I do not find any justification to concede to the prayer of the petitioners to dismiss the suit. And this is why I do not find any justification to concede to the prayer of the petitioners to dismiss the suit. But I am inclined to allow the alternative prayers of the petitioners by making them, defendants in place of their predecessor Santosh Kumar. ( 11 ) THIS is also sufficient to dispose of the other petition being G. A. No. 3216 of 2002 as in view of what has been discussed above the plaintiff has no ground to make any prayer for showing the suit as uncontested suit. ( 12 ) ACCORDINGLY, the application being G. A. No. 543 of 2003 is allowed in part. The names of the petitioners be inserted in place of their defendant/ predecessor Santosh Kumar and Cause Title of the suit and register be amended accordingly. The other being G. A. No. 3216 of 2002 stands rejected. ( 13 ) DEPARTMENT is directed to comply with the directions and for that purpose the record be sent back to the Department with a further direction to return the same after compliance of the order. ( 14 ) ALL parties and the department are to act on a xerox signed copy of this order on the usual undertaking. G. A. No. 543 of 2003 allowed in part. G. A. No. 3216 of 2002 rejected.