JUDGMENT 1. THE above application has been filed on Notice of Motion dated 18th March, 2009 by one Sushila Devi Lodha, Aditya Vikram Lodha, Harsh Vardhan Lodha praying for following reliefs: (a) Death of Rajendra Singh Lodha, the plaintiff, be recorded ; (b) THE petitioners be brought on record as plaintiffs in T.S. No. 6 of 2004 and be allowed to continue with T.S, No. 6 of 2004. (c) Amendment as proposed in 'red' on a copy of the plaint in T.S. No. 6 of 2004 annexed hereto and marked with the letter "X" be allowed. (d) Harsh Vardhan Lodha on behalf of the petitioners be given liberty to re-verify the plaint in T.S. No. 6 of 2004 after the amendment is carried out and the Department to take necessary steps on the basis of the order that may be passed herein. (e) Leave be granted to the petitioners to serve a copy of the amended plaint on the Advocates of the defendants appearing in the Suit. (f) Dispensation with service of amended plaint personally on the defendants in the suit. 2. THE said application was being opposed by filing affidavits by the defendants in the aforesaid testamentary suit, affirmed by one Arvind Kumar Newar and one Devendra Kumar Mantri. THE said Testamentary Suit came to be registered on an application being made by one Rajendra Singh Lodha since deceased (hereinafter referred to as the deceased Lodha) for grant of probate to a Testamentary Instrument dated 18th April 1999, said to be the last Will of one Priyamvada Devi Birla. THE said application was made by deceased Lodha for the grant as aforesaid in the capacity of the sole Executor. Several persons including Krishna Kumar Birla, Basant Kumar Birla, Ganga Prasad Birla, Yashovardhan Birla, Radha Devi Mohta and Laxmi Devi Newar (since deceased), defendant No. 2 and predecessor-in-interest of the defendant No. 1 (a) to (d) lodged caveat intending to oppose the said grant. On application being made by the said deceased Lodha, the caveats lodged by Krishna Kumar Birla, Basanta Kumar Birla, Yashovardhan Birla were discharged and caveat lodged by Ganga Prasad Birla was retained. THEreafter affidavits in support of Caveats having been filed the said application for grant of probate was registered as a regular Testamentary Suit. THE said propounder/plaintiff Lodha died intestate leaving him surviving the aforesaid applicants. THEreafter affidavits in support of Caveats having been filed the said application for grant of probate was registered as a regular Testamentary Suit. THE said propounder/plaintiff Lodha died intestate leaving him surviving the aforesaid applicants. THE instant application was being opposed strenuously contending that the said testamentary suit has abated on the death of the sole Executor of the said deceased Lodha as the right to sue does not and cannot survive. On the other hand it was contended by the applicants the right to sue in a Testamentary Suit does survive for a testamentary suit seeks to establish genuineness of the will nor the relief asked for. A large number of decisions were cited by learned Counsels of both the sides. For a good number of days the matter was heard and hearing concluded. Immediately after conclusion of the hearing and before the judgment was prepared an application being G.A. No. 3465 of 2009 had been filed by one Ajay Kumar Newar, Arvind Kumar Newar and Nand Gopal Khaitan defendant Nos. i (a), (b) and (c) praying for following reliefs: (a) Prayers in G.A. No. 3434 of 2008 made by Harsh Vardhan Lodha and other be granted and they may be allowed to proceed with the application for appointment of administrator pendente lite, being G.A. No. 3731 of 2008 without prejudice to the petitioners' contentions stated in paragraph 18 hereinabove ; (b) Leave be granted to the petitioners to file an additional written statement in T.S. No. 6 of 2004 after re-verified amended plaint is served on them; (c) THE locus standi of the heirs of Rajendra Singh Lodha to apply for- grant of Letters of Administration with a copy of will annexed be tried as a preliminary issue at the suit. THEreafter on 23rd December 2009 the defendant Nos. 1 (d) and 2 made application separately praying identical reliefs. It is clear from the aforesaid prayers all the defendants have really conceded to the prayer made by the applicants in G.A. No. 3434 of 2008. It has to be examined in view of the concession above made by the defendants whether the payers made by Lodhas should be allowed automatically or not. It is settled law the concession made on fact can always be accepted by the Court to act upon further treating the same as being admission under law. It has to be examined in view of the concession above made by the defendants whether the payers made by Lodhas should be allowed automatically or not. It is settled law the concession made on fact can always be accepted by the Court to act upon further treating the same as being admission under law. Concession cannot be determinative factor for deciding a legal issue. 3. IN the circumstances as above this Court is inclined to write judgment on the legal issue once raised for disposal of the application of Lodha. 4. IN this application after hearing the learned Counsel of the parties and considering the position law propounded by various High Courts of this country and the Supreme Court in this matter following two legal issues have fallen for consideration :- (i) Whether right to sue as mentioned in Order XXII Rule 1 of C.P.C, in the testamentary suit means and denotes right to obtain relief namely grant of probate or Letters of Administration, or to establish the genuineness of the will before the Court (ii) Whether testamentary suit abates depending on the answer to question (i) (iii) Whether the testamentary suit for obtaining grant of probate, even if abates can be converted for obtaining relief for grant of Letters of Administration with the will annexed to the competent person. While dealing with the first question I notice that our Court has taken consistent view as principle of law that death of executor(s) results in total abatement of the testamentary suit and consequently substitution in any manner is not- permissible. The legal view was taken for the first time in case of Sarat Chandra Banerjee v. Nani Mohan Banerjee reported in (1909) ILR XXXVI Cal 799. IN this case, learned Single Judge of the Court expressed statement of law as follows:- "the right to sue in Order XXII means the right to bring a suit asserting a right to the same relief which the deceased plaintiff asserted at the time of his death, and that a right to obtain probate of a will is a right different in its nature from a right to be appointed by the Court to administer the deceased's estate." The above view is also accepted by another learned Single Judge in case of Hari Bhusan Datta's case reported in (1918) ILR XLV 862. IN that case it was held that "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." View taken in the case of Sarat Chandra's case came to be considered by Division Bench of this Court in case of Hari Pada Saha reported in (1948) ILR (I) Calcutta page 300. IN this case, the Division Bench has approved of the legal proposition but factually allowed the conversion of the probate proceedings into for grant of letters of administration with the copy of the will annexed. The relevant portion of the said report at page 303 is set out hereunder:- "When, in substance, the application for substitution was treated as one for letters of administration with a copy of the will annexed on the basis of the respondents' own rights to the property left by the testator as heirs of Subashini, it would, we think, be sacrificing justice to mere technicality, if we are to set aside the entire proceeding at the present stage, and direct the plaintiffs to proceed afresh. There is undoubtedly a technical defect, but it is not a defect which has in any way affected the merits of the case or the jurisdiction of the Court." Before the said Hari Pada Sana's case was decided another Division Bench in case of Chandramani Matty (AlR 1932 Cal 206) taking note of Sarat Chandra Banerjee's case took slightly different view as follows: "It is true that the right to obtain probate of a will does not survive : but in an appeal in a case where the judgment appealed against may operate as one in rem, different considerations will arise, in the event of the codicil being proved, the Court may pass appropriate orders for the administration of the estate of the deceased." IN this case, during pendency of the appeal the original appellant being the legatee in terms of the codicil both the heirs gifted the legacy to the third parties who filed two applications for substitution. These applications were opposed on the plea right to sue in the present suit does not survive to the applicants. However overruling such objection Division Bench held that the right to sue survive on gift being made in favour of the applicants and as such they became the legal representatives as defined in Section 2 of the Code. Learned Single Judge long thereafter, of this Court in case of Santi Swarup Sarkar v. Pradip Kumar Sarkar reported in AIR 1997 Cat 197 while considering a good number of decisions including the aforesaid Sarat Chandra's case and also aforementioned case has allowed the application for conversion of probate proceedings into that for grant of Letters of Administration. 5. IN case of Mahatma Missir v. Thakur Prasad Chaudhuri reported in (1950) ILR 2 Cal 653 the Court took the same view that on the death of the executor the probate proceedings abates. But the probate proceedings was not allowed to be proceeded as a proceeding for grant of Letters of Administration. 6. HOWEVER, the Division Bench of Madras High Court are of consistent view contrary to what majority of Benches of this Court had taken. The Division Bench of Madras High Court in case of P. Rama Naidu and Ors. v. Rahgayya Naidu and Ors. reported in AIR 1932 Madras 114 while taking note of the aforesaid cases of Calcutta High Court rendered in Sarat Chandra's case and subsequent case at page 117 has explained the legal position as follows :- "An executor who prays for probate prays in form for something which can be granted to no one else. But the essence of the proceedings is that he seeks to establish a will, not for hims.elf but as the representative of those who take benefits under it. If he fails in his duty, any of those whom he represents may intervene to carry on the proceedings, having in effect by representation through the executor been a party to the proceedings from the outset and, if in the course of the proceedings in the original Court or in appeal the executor drops out through death, it follows that any of those he has represented may similarly carry on the proceedings with the unessential modification that the prayer must then be for letters of administration with the will annexed. There is no reason to doubt that the position is the same in this country. This aspect of the matter, 1 think it is clear, was overlooked in Sarat Chandra v. Nani Mohan Banerjee and Haribhushan v. Manmathanath, on which Mr. Varadachari relies, where the petitions before the Court were dealt with as if the only question arising was how Order 22 of the Code applied to them." It seems to me that the aforesaid view the right to sue in a testamentary proceedings is right to establish the genuineness of the will did not confine to obtain the relief of grant of probate. The aforesaid view was also approved by the subsequent Division Bench of the same Court in case of Govind M. Asrani v. Jairam Asrani reported in AIR 1963 Madras 456. The Division Bench of that Court has not accepted the Calcutta views rather had chosen to follow and approve of the decision reported in earlier case Madras as stated above. In the report at page 459 in paragraphs 13 and 14 it was stated as legal "principle as follows:- "(13) To put it in other words, the proceedings taken out for the grant of probate or letters of administration with the will annexed are in the interest of the legatees and the question involved in such proceedings will be the same, namely, about the truth and genuineness of the will. In both the cases it will be open to a person interested to intervene. Final adjudication as to the genuineness of the will in both cases will operate as a judgment in rem." "(14) In essence a probate is nothing more than a copy of the will granted to an executor appointed under it, certified under the seal of the Court. Letters of administration with the will annexed which is granted in cases where no executor is appointed or the appointment of the executor fails, also fulfils the same purpose. It is true that in form a probate is different from a letters of administration with the will annexed ; there is also difference in procedure regarding necessity to - take security ; but \i cannot be denied that an adjudication in an application or suit for obtaining probate or letters of administration will be binding on all the persons interested in the estate of the deceased testator. It may be that the quantum of interest possessed by each legatee in the estate left by the deceased will not be the same but each legatee will be interested as much as the executor in the matter of the proof of the will. A person applying for the issue of probate or letters of administration with the will annexed can therefore be regarded as being in the position analogous to that of a manager of a joint Hindu Family in regard to litigations by or against the family. We are, therefore, unable with great respect to the learned Judges who decided ILR (1950)2 Cal 653, to agree that the proceedings are not representative in their character." 7. LEARNED Single Judge of the Gujrat High Court in case of Jadeja Pravinsinhji Anandsinhji v. Jadeja Mangalsinhji Shivsinhji and Ors., reported in AIR 1963 Gujrat 32 while assimilating all the views of the Madras High Courts and this Court and Patna High Court and also the English decisions on this issue with great erudition and research work had come to conclusion in paragraph as follows : "An executor in applying for probate is not fighting a personal action but fighting for the interests of all the. beneficiaries under the will. Therefore the action of executor in applying for a probate is not in circumstance a personal action and as observed earlier by me the maxim actio personalis moritur cum persona could not apply to such a case. If . the executor fails in his duty, any of those whom he represents are entitled to intervene and carry on the proceedings with a 'formal modification' that prayer must then be for letters of administration with the will annexed." 8. IT appears that the learned Judge with all seriousness and sincerity has taken note of the views taken by the learned Judge in Sarat Chandra's case, Hahbhusan Datta's case and also the judgment of the Division Bench in case of Chandramani v. Bipin Behariand thereafter in this case has clearly and in my view appropriately, distinguishing the ratio decided in the case of Sarat Chandra and Haribhusan Carta's case. Learned Judge has analized scrupulously the ratio and effect of the case rendered in Chandramani Maity's case. Learned Judge has analized scrupulously the ratio and effect of the case rendered in Chandramani Maity's case. In paragraph 12 of the said report the learned Single Judge in this case has quoted as follows in the context of the decision in Chandramani's case : "With great respect, if the view of Mr. Justice Harington in ILR 36 Calcutta 799 referred to above, was accepted, then the right which Chandramani was prosecuting at the appellate stage was the right to obtain the probate of the codicil in her capacity as an executrix. That she happened to be a donee under the codicil was an accident. Therefore, it is difficult to appreciate the distinction which Suhrawardy and Graham, JJ., attempted to draw between the case before Mr. Justice Harington and the case before them. In my view, the actual decision of Suhrawardy and Graham, JJ., is contrary to the view expressed by Mr. Justice Harington. In the result, as I read the decision of Suhrawardy and Graham, JJ., it is contrary to the view expressed by Mr. Justice Harington." I with respect accept the aforesaid views of the learned Single Judge of the Gujrat High Court. I also respectfully agree and adopt that the views expressed by Justice Harington in Sarat Chandra's case cannot be made a binding precedent and subsequently, the similar views taken by Justice Greaves is not appropriate in view of decision of Division Bench consisting of Suhrawardy and Graham, JJ. 9. IN Mahatma Missirv. Thakur Prasad Chaudhuri reported in (1950) I.L.R. 2 Cal 653 the Division Bench while approving the views taken in Haribhusan Datta's case held that the probate proceedings abates and no substitution could be allowed to continue the proceedings or to continue the proceedings with conversion into the proceedings for letters of administration. The Division Bench of this Court duly took note of the Division Bench judgment of this Court in the case of Hari Pada Sana. However, this Bench did not take note of the actual ratio of the judgment at page 303 which has already been quoted by me. 10. NEITHER in the case of Hari Pada Sana nor of Mahatma Missir the earlier Division Bench judgment in the case of Chandramani Maity was considered. However, this Bench did not take note of the actual ratio of the judgment at page 303 which has already been quoted by me. 10. NEITHER in the case of Hari Pada Sana nor of Mahatma Missir the earlier Division Bench judgment in the case of Chandramani Maity was considered. After considering and summing up of all the decisions quoted above I am of the view as follows:- (a) If the executor dies during the pendency of the probate proceedings the right to obtain probate abates as probate can only be granted to the executor and executor alone and none else, {see Section 222 of the Indian Succession Act) Therefore, the right of obtaining probate is purely personal one and such right ceases with the death of executor or executors. If there be more than one in the proceeding neither the heirs and legal representatives of the deceased executor/executrix nor the legatee in any sense of the will can ask for substitution for obtaining probate of the will. (b) The executor is not the representative within the meaning of Order 1 Rule 8 of the Civil Procedure Code as has been observed by the Division Bench of the Bombay High Court (AIR 2007 Bombay 103) as executor represent himself and the co-executor if any in terms of the appointment of the will by the testator. But certainly he has been entrusted duty while obtaining probate to substantiate genuineness of the will before the Probate Court with the object of obtaining legal perfectness of the right and status not only qua executor but also that of legatee and above all for administration of estate. In that sense he for limited period represents the legatee and such representation is quite distinct and different from that of numerous persons having same interest. The interest of the executor is quite distinct and different from that of the legatee. The persons as mentioned in Order 1 Rule 8 of the Civil Procedure Code always have the same identical and common interest. The interest of the executor is quite distinct and different from that of the legatee. The persons as mentioned in Order 1 Rule 8 of the Civil Procedure Code always have the same identical and common interest. Such distinguishing feature in the nature of interest will appear from the fact that so long the executor(s) continue(s) with the proceedings for obtaining probate of the will the legatee cannot join the proceedings, Burin case of representative suit under Order 1 Rule 8 of the Code of Civil Procedure any person can come and join the proceedings and the newcomer can continue with the proceedings in the event the first person quits the proceedings. The legatee can come to the Court to establish the genuineness of the will only when the executor refuses to act or renounces or dies and not otherwise, (see Section 232 of Indian Succession Act). (c) It is thus plain that the interest of the executor is completely distinct and different from that of the legatee and also right to take action is also different. (d) According to me the views of the Madras High Court appears to be more logical and appropriate. In testamentary proceedings the right to sue is really right to establish the genuineness of the will but different relief is granted for different proceedings and to different persons as in case of executor probate is granted while legatee is granted Letters of Administration with the will annexed. In other words, the object of initiating testamentary proceedings (whether for probate or Letters of Administration) is same and to achieve the same purpose that is to say to effectively let the estate to pass on the rightful person as indicated in the will. (e) Thus, it does not admit of any ambiguity that notwithstanding death of executor right to establish the genuineness of the will does not extinguish and it obviously survives upon legatee in terms of the will. (f) But in technical sense the probate proceedings cannot be allowed to be continued by the person who is not executor but in substance' if such a proceedings is completed in such a manner that will bring real object viz. establishing genuineness of the will, it is not impermissible under law. The trend of the views of the Court customarily and specially now is to avoid proliferation and prolongation of the litigation rather to shorten the same. establishing genuineness of the will, it is not impermissible under law. The trend of the views of the Court customarily and specially now is to avoid proliferation and prolongation of the litigation rather to shorten the same. The Supreme Court decision as quoted above is clearly indicative of such mind of the Court. Indeed, as far as in 1942 such course of action was adopted by the Appeal Court of this Court observing as above. Recently, Delhi High Court in case of Raj RaniBhasin v. State, reported in 158(2009) Delhi Law Times 713] has taken the same view allowing conversion of the probate proceedings into proceedings for obtaining letters of administration. 11. LEARNED Single Judge of this Court in case of Satinath Mukherjee (2005)1 Cal HN 27 granted such relief observing that Court has got inherent power to take note of the subsequent event to mould the reliefs on the basis of the altered conditions to mete out justice. As far as possible the anxiety and endeavour of the Court should be to grant remedy rather than keeping aggrieved party away from getting legitimate relief purely on technical ground. 12. IN testamentary jurisdiction of this Court there is no different provision for two proceedings one for probate and another for grant of letters of.administration. Chapter XXXV of the Original Side Rules provides for the same procedure and with the same nomenclature viz. testamentary for granting different reliefs. Therefore, the amendment as suggested in the probate proceedings would clearly render an application for grant of letters of administration in complete sense and if such an amendment is allowed then the probate proceedings is perished, only number of the suit survives. Hypothetically the suit would have been same had R.S.Lodha not proceeded for grant and the present petitioners in that case should have come at the same time with the same form of petition as shown by way of amendment and for the same relief. If at this long distance of time on mere technical ground amendment is refused and the present petitioners are compelled to make separate application in technical sense it would be a travesty of justice because of delay as already five years have gone by, and there has been no progress so to say, for examining the document by the Court. If at this long distance of time on mere technical ground amendment is refused and the present petitioners are compelled to make separate application in technical sense it would be a travesty of justice because of delay as already five years have gone by, and there has been no progress so to say, for examining the document by the Court. Another aspect of the matter that should not loose sight of the Court is that what else the present petitioner would have asked for in addition to what has been asked for in the present application, had he filed separate proceedings. 13. I, therefor, while accepting the concession made by the applicant defendants allow this application for amendment and convert the said testamentary suit lor grant of Letters of Administration. I regularize the said suit to be treated as a suit for granting Letters of Administration. I make it clear that the question of locus standi tor obtaining grant by the present petitioners is kept open, and same shall be decided as a preliminary issue but after receiving evidence. 14. LET the amendment be carried out within four weeks from date of order. There will be no order as to cost.