JUDGMENT : 1. This is an application filed by Jadunath Barick and four others praying for an order converting Testamentary Suit No. 108 of 1985 into a proceeding for grant of Letter of Administration and thereafter to grant Letter of Administration in respect of last Will and Testament dated 22nd May, 1970 of Purna Chandra Barick in favour of the petitioner in connection with the whole estate of the deceased throughout the State of West Bengal. 2. One, Purna Chandra Barick, since deceased, a Hindu, governed by Dayabhaga School of Hindu Law, executed and published his last Will and Testament in English language and character on 22nd May, 1970. The said Purna Chandra Barick died testate on 27th May, 1970 at premises no.150B, Acharya Prafulla Chandra Road, within the Municipal town of Calcutta and within the ordinary civil jurisdiction of this Hon’ble Court. Under the aforesaid last Will and Testament the deceased appointed Smt. Sarala Bala Barick, widow of his predeceased son, Manmotho Nath Barick and the predecessor-in-interest of the petitioners herein, namely, Netai Chandra Barick, being the only surviving son of his pre-deceased son, Manmotho Nath Barick, as executrix and executor respectively. The said Will was registered on 22nd May, 1970 itself at the Calcutta Registry Office. The said Will dated 22nd May, 1970 in original has been annexed to the application for grant of probate and was filed by Netai Chandra Barick, since deceased, being the executor singly as the other person being the executrix of the Will, namely, Smt. Sarala Bala Barick, had declined to join him in the application for grant of probate meaning thereby she refused to give consent to the grant of probate of the Will of deceased Purna Chandra Barick. The probate application was registered as P.L.A. 108 of 1985 which inadvertently misdescribed as Testamentary Suit No.108 of 1985. However, by virtue of an order passed by this Court on 13th September, 2017 the said error was rectified and P.L.A. 108 of 1985 was registered by the Department as T.S. No.17 of 2017. 3. The executrix, Smt. Sarala Bala Barick, died on 17th January, 2004 and the executor, Netai Chandra Barick, died on 6th October, 2011. Therefore, as of now neither the executrix, nor the executor is alive. 4. 3. The executrix, Smt. Sarala Bala Barick, died on 17th January, 2004 and the executor, Netai Chandra Barick, died on 6th October, 2011. Therefore, as of now neither the executrix, nor the executor is alive. 4. The testator above-named, left properties both within and outside the original jurisdiction of this Hon’ble Court but within the testamentary and intestate jurisdiction of this Hon’ble Court, full particulars of the Estate, effects and valuation of the deceased above-named were set out in the Affidavit of Assets affirmed by the executor, Netai Chandra Barick, since deceased, and filed before this Hon’ble Court in the aforesaid probate proceeding being numbered as T.S. No.17 of 1985. The predecessor of the present petitioners, Netai Chandra Barick, paid ad valorem duty in respect of the estate of the deceased as would appear from the certificate of Registrar of this Hon’ble Court. The petitioners’ predecessor-in-interest, namely, Netai Chandra Barick obtained from the Estate Duty Controller, Calcutta, the estate duty certificate as would appear from the original certificate of the Estate Duty Controller, which were annexed and marked with the application for grant of probate being Testamentary Suit No.17 of 2017 (previously described as T.S. No.108 of 1985). It has been stated in paragraph 9 of the present application that the deceased died leaving behind him surviving the following persons as his own relatives who would have inherited his estate under the Hindu Succession Act, 1956 in case of intestacy and no one else. Paragraph 9 is reproduced herein below: “9. The deceased died leaving the following persons as his near relatives who would have inherited his Estate under the provisions of the Hindu Succession Act, 1956 in case of intestacy and no one else. Sl. No. Name Address Relation 1. Netai Chandra Barick 150A, Acharya Prafulla Chandra Road, Calcutta. Son of the predeceased son Monmotha Nath Barick 2. Smt. Durgabala Barick 150A, Acharya Prafulla Chandra Road, Calcutta. Widow of predeceased son Gour Chandra Barick of the predeceased son Monmotha Nath Barick. 3. Angurbala Pramanick 38, Alipur Road, Calcutta. Daughter of the predeceased son Monmotha Nath Barick. 4. Saralabala Barick 150A, Acharya Prafulla Chandra Road, Calcutta. Widow of the predeceased son Monmotha Nath Barick. 5. Muktakeshi Barick 150A, Acharya Prafulla Chandra Road, Calcutta. Widow of the predeceased son Arun Kumar Barick of the predeceased son Monmotha Nath Barick. 6. Sm. Jayabati Patra 150A, Acharya Prafulla Chandra Road, Calcutta. Daughter of the predeceased son Monmotha Nath Barick. 4. Saralabala Barick 150A, Acharya Prafulla Chandra Road, Calcutta. Widow of the predeceased son Monmotha Nath Barick. 5. Muktakeshi Barick 150A, Acharya Prafulla Chandra Road, Calcutta. Widow of the predeceased son Arun Kumar Barick of the predeceased son Monmotha Nath Barick. 6. Sm. Jayabati Patra 150A, Acharya Prafulla Chandra Road, Calcutta. Daughter of the predeceased son Monmotha Nath Barick. 5. Mr. Chakraborty, appearing for the petitioners, submitted that all the persons named in paragraph 9 of the instant petition are sui juris and have attained majority except No.1, 2, 3 and 4. Mr. Chakraborty submits that it has been averred in the application that save and except persons under serial no.1, 2, 3 and 4 in paragraph 9, others are alive. Mr. Chakraborty submits that due execution and attestation of the Will of the deceased have been proved by the declaration of Ananda Roy, one of the attesting witnesses to the said last Will and Testament at the foot of the probate application being T.S. No.17 of 2017 as also by his affidavit filed therein. He submits that both the said Netai Chandra Barick, son of Pre-deceased son of Manmotho Nath Barick and Smt. Jayabati Barick, being the daughter of the said Manmotho Nath Barick, were and are the residuary legatees. The surviving residuary legatee Smt. Jayabati Barick has refused to make application for grant of Letters of Administration or to join in the instant application as she expressed that she would oppose the application for grant of Letters of Administration, if made. It has been stated in the application that the petitioners as mentioned above, are the heirs and legal representatives of the deceased executor and legatee, Netai Chandra Barick and the petitioners are also the beneficiaries under the subject Will. Under the terms of the Will Jayabati Barick, also known as Jayabati Patra of 150B, Acharya Prafulla Chandra Road and also Subol Chandra Barick, Rabindra Nath Barick, Tikendra Nath Barick, Sudhir Chandra Barick and Subrata Barick, all sons of brother of the deceased, namely, Nandalal Barick are also the other beneficiaries of the last Will and Testament dated 22nd May, 1970 published by Purna Chandra Barick and as such, the petitioners are entitled to the administration of the estate of the deceased who had died intestate on 27th May, 1970. It has been stated in the application that probate application had been registered as suit and same had been registered as Testamentary Suit No.17 of 2017 and the said suit was heard by this Court and the predecessor-in-interest of the petitioners, namely, Netai Chandra Barick, since deceased, being the executor of the last Will and Testament dated 22nd May, 1970 published by Purna Chandra Barick, since deceased, duly adduced evidence in the said suit and the said testamentary suit is awaiting for argument and at that stage the said executor died. 6. During pendency of the said testamentary suit the sole surviving executor, Netai Chandra Barick, died on 6th October, 2011 and thereafter, his sole widow, Smt. Anila Barick alias Abala Barick, also died on December 28, 2011. In connection with the Testamentary Suit No.17 of 2017, formerly described as T.S. No.108 of 1985, the present petitioners filed an application being G.A. No.54 of 2012, praying for grant of Letters of Administration in respect of the last Will and Testament dated 22nd May, 1970 of the deceased Purna Chandra Barick. The said application was taken up for consideration by a learned Single Judge of this Hon’ble Court and by an order dated 10th December, 2014, being Annexure ‘D’ to the present application. After considering the prayer made on behalf of the petitioners, the said G.A. No.54 of 2012 was dismissed as withdrawn on the basis of the submission made on behalf of the petitioner that certain technical errors crept in the said application and on such prayer liberty was granted to file a fresh application on the selfsame cause of action. 7. The defendant in T.S. No.17 of 1985, filed an application being G.A. No.49 of 2012, praying for allowing her with the management of Purna Cinema. The contentions of the contesting defendant were disputed by the petitioners and without passing any order on merit this Hon’ble Court, by the aforesaid order dated 10th December, 2014, recorded the death of Netai Chandra Barick and it was held – “The heirs and legal representatives of Netai Chandra Barick as the residuary legatee had already applied for conversion of Testamentary Suit No.108 of 1985 to a proceeding for Letters of Administration. However such application was withdrawn on the ground of technical error with liberty to file afresh. However such application was withdrawn on the ground of technical error with liberty to file afresh. Till a decision is arrived at in this aspect, it would be improper to allow any other relief to the applicant in G.A. No.49 of 2012 at this stage.” The Court further held – “It is contended on behalf of the legal heirs of Netai Chandra Barick that, they need to be substituted. This question is kept open and will be decided if an when an application to such effect is made.” 8. An affidavit-in-opposition has been filed opposing the prayer made in the application filed by the defendant Jayabati Barick, who appears in person. It has been submitted by the defendant Jayabati Barick (Patra) that she has denied the case made out in the application by the petitioners. She specifically submits that her grandfather, Purna Chandra Barick, since deceased, has registered last Will dated 21st July, 1967 and in or about 1st week of May, 1970, he was lying in coma stage and he died on 27th May, 1970. At the time of cross-examination the plaintiff Netai Chadra Barick admitted that the health of his grandfather was not good and was not in a position to put any signature at that moment. It has been stated that many facts have been admitted during cross-examination by the witness from which it will appear that the Will of subsequent date is not genuine. She submitted that T.S. No.1 of 2012 (P.L.A. No.277 of 2001) was registered at her instance, praying for Letters of Administration on the basis of the registered last Will dated 21st July, 1967. It has been contended that Netai Chandra Barick, since deceased, filed affidavit-in-opposition and the petitioner, in P.L.A. No.277 of 2001 renumbered as T.S. 1 of 2012, filed her reply and affidavit of documents and the same is pending for examination-in-chief. It has been further stated that cross-examination of PW 2 has not yet started in T.S. No.108 of 1985 (now renumbered as T.S. No.17 of 2017). By the affidavit-in-opposition Mrs. Jayabati Barick contended that the application being G.A. No.1583 should be dismissed and the order of conversion as prayed for be rejected. It has been further stated that cross-examination of PW 2 has not yet started in T.S. No.108 of 1985 (now renumbered as T.S. No.17 of 2017). By the affidavit-in-opposition Mrs. Jayabati Barick contended that the application being G.A. No.1583 should be dismissed and the order of conversion as prayed for be rejected. While making such submission that the application should be dismissed, she has relied on the observation made by this Hon’ble Court’s order dated 23rd February, 2015 being Annexure ‘A’ to the affidavit-in-opposition of Jayabati Barick to the effect that this Hon’ble Court, while disposing of G.A. No.3407 of 2005, filed in T.S. No.17 of 1985 (formerly described as T.S. No.17 of 1985), seeking closure of evidence and early disposal of T.S. No.17 of 1985 (formerly described as T.S. 17 of 1985), held to be no longer alive. The relevant portions of the said order is quoted below :- “G.A. 3407 of 2005 is an application made in T.S. 108 of 1985 seeking closer of the evidence and early disposal of T.S. 108 of 1985. T.S. 108 of 1985 is no longer live. In such circumstances, no order need be passed in G.A. 3407 of 2005. The same is accordingly disposed of. No order as to costs.” 9. Mrs. Barick, defendant in T.S. No. 108 of 1985 (now renumbered as T.S. No. 17 of 2017) submitted that in view of such observation that T.S. 108 of 1985 is no longer alive, the present application cannot be entertained. Prior to the aforesaid this Court also held in the said order – “I find that G.A. 210 of 2002 has been made in Testamentary Matter No. 108 of 1985. Testamentary Matter no.108 of 1985 does not survive due to death of the executor who had applied for grant of probate. In such circumstances, G.A. 210 of 2002 cannot be entertained and the same is dismissed, however, without any order as to costs.” 10. There is no doubt that the last paragraph of the said order dated 23rd February, 2015 is an outcome of the second paragraph of the said order where it has been mentioned that testamentary suit does not survive due to death of the executor and for no other reason. However, while relying on this order dated 23rd February, 2015, Mrs. There is no doubt that the last paragraph of the said order dated 23rd February, 2015 is an outcome of the second paragraph of the said order where it has been mentioned that testamentary suit does not survive due to death of the executor and for no other reason. However, while relying on this order dated 23rd February, 2015, Mrs. Barick does not whisper anything about the order dated 10th December, 2014 whereby the same Court allowed the petitioner to withdraw GA 54 of 2012 and liberty was granted to file afresh on the self same cause of action. Accordingly, GA 54 of 2012 was dismissed as withdraws with liberty as aforesaid. A leave was granted to the petitioner being the legal heir and representative of the executor, Netai Chandra Barick to pray for grant of letter of Administration. Mrs. Barick, in her defence, submitted that the order dated 23rd February, 2015, after the order subsequent to 10th December, 2014 and there being no appeal against the said order dated 23rd February, 2015, in exercise of the liberty granted under order dated 10th December, 2014, the petitioner cannot be allowed to make the present application for conversion of the proceeding into a Letter of Administration. It is significant to note here that in the earlier order dated 10th December, 2014, both Mr. Chakraborty and Mrs. Jayabati Barick appeared before His Lordship. Mrs. Barick never raised any objection nor filed any appeal for grant of such leave to a fresh application for conversion as has been filed by the petitioner now. While the order dated 23rd February, 2015 was passed, however, the order-sheet does not reflect that any one appeared either for the plaintiff or for the defendant in any of the testamentary suit. Therefore, it is possible that on 23rd February, 2015, the Hon’ble Judge had no notice about the order dated 10th December, 2014 particularly when order dated 10th December, 2014 does not restrict. Mrs. Barick has also pointed out that while his Lordship granted leave, the petitioner never took out the application within time. However, on perusal of the said order dated 10th December, 2014, it does not appear that any time frame was mentioned in the said order within which the application was to be filed. Mrs. Barick has also pointed out that while his Lordship granted leave, the petitioner never took out the application within time. However, on perusal of the said order dated 10th December, 2014, it does not appear that any time frame was mentioned in the said order within which the application was to be filed. The petitioner has filed the application within the reasonable period of time and has made the prayer for conversion of the probate proceeding into one under Letter of Administration. The order was passed on 10th December, 2014 and record reveals that the application was affirmed on 7th April, 2015. It does not appear to this Court that there is enormous delay in taking out the application in order to exercise the authority on the basis of the liberty granted by His Lordship to file the instant application. Even if there is some delay but such delay cannot defeat the legal rights of the parties. Therefore, submission made by Mrs. Barick that the application is not maintainable cannot be sustained in law because the cause for the suit still continues so long the legal heirs and legal representatives are lying as residuary legatees. The petitioners are heirs and legal representatives of the deceased executor and legatee, namely, Netai Chandra Barick, and the petitioners are also the beneficiaries under the said subject Will. Jayabati Barick is also a beneficiary under the Will dated 22nd May, 1970. Therefore, the petitioners are entitled to the administration of the estate of the deceased who died on 27th May, 1970. Whether or not, the Will dated 22nd May, 1970 is the last Will published by Purna Chandra barick is the subject matter of decision in the testamentary suit. As indicated earlier, the suit has progressed to a large extent. 11.It is submitted at the Bar that so far as T.S. No.17 of 2017 (formerly T.S. 108 of 1985), the same will be placed for argument on the next date. So far as T.S. No.1 of 2012 is concerned, plaintiff’s witness will depose in-chief. Therefore, save and except these pending applications, suits are ready. 12. In support of his submission Mr. Chakraborty has relied on a decision in the case of P. Rama Naidu & Ors. Vs. So far as T.S. No.1 of 2012 is concerned, plaintiff’s witness will depose in-chief. Therefore, save and except these pending applications, suits are ready. 12. In support of his submission Mr. Chakraborty has relied on a decision in the case of P. Rama Naidu & Ors. Vs. Rangayya Naidu & Ors., reported in AIR 1933 Madras 114 to show that in absence of the executor in the Will probate proceeding can be converted into a letter of administration. There is no dispute in the proposition that in the course of the proceedings, if the executor drops out by reason of 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. 13. He has also relied upon another decision in the case of Jadeja Pravinsinhji Anandsinhji – Vs. – Jadeja Mangalsinhji Shivsinhji, reported in AIR 1963 Gujarat 32. In that decision it has been held that substitution of the parties who claims to be residuary legatee, was properly allowed by the trial Court by continuing the proceedings and the trial Court was also right in allowing the amendment of the prayer from one for probate to one for letters of administration. The case here is also identical in nature and there cannot be two opinion about the same. 14. In this regard, it is profitable to mention the provisions of Section 232 which deals with grant of administration to universal or residuary legatees. The said provision is set out below : “232. Grant of administration of universal or residuary legatees.— When— (a) the deceased has made a Will, but has not appointed an executor, or (b) the deceased has appointed an executor who is legally incapable or refuses to act, or who has died before the testator or before he has proved the Will, or (c) the executor dies after having proved the will, but before he has administered all the estate of the deceased, a universal or a residuary legatee may be admitted to prove the Will, and letters of administration with the Will annexed may be granted to him of the whole estate, or of so much thereof as may be unadministered.” 15. Therefore, Section 232(b) is applicable in the present case where the executor has died before he has proved the Will. Therefore, Section 232(b) is applicable in the present case where the executor has died before he has proved the Will. So also provisions of Sections 233 and 234 are applicable in the present case which are set out below:- “233.Right to administration of representative of deceased residuary legatees.—When a residuary legatee who has a beneficial interest survives the testator, but dies before the estate has been fully administered, his representative has the same right to administration with the Will annexed as such residuary legatee. 234. Grant of administration where no executor, nor residuary legatee, nor representative of such legatee.—When there is no executor and no residuary legatee or representative of a residuary legatee, or he declines or is incapable to act, or cannot be found, the person or persons who would be entitled to the administration of the estate of the deceased if he had died intestate, or any other legatee having a beneficial interest, or a creditor, may be admitted to prove the Will, and letters of administration may be granted to him or them accordingly.” 16. The petitioners being the legal representatives, have the same right to administration with the Will annexed as residuary legatee. Accordingly, the application is allowed in terms of prayer (b). Re.: G.A. No.2704 of 2017 This is an application for substitution and for amendment of testamentary suit proceeding being T.S. No.108 of 1985 (T.S. No.17 of 2017) 17. By this application the petitioners prayed for substitution of their names in place and stead of deceased Netai Chandra Barick in the application for grant of probate being T.S. No.108 of 1985, re-numbered as T.S. No.17 of 2017. It is apparent from the record that during the pendency of application for grant of probate made by Netai Chandra Barick, being the executor and also residuary legatee to the Will and Testament dated 22nd May, 1970 of Purna Chandra Barick, the said Netai Chandra Barick died. The present plaintiffs are the legal heirs of the said Netai Chandra Barick and also some of them are legatees mentioned in the said will. 18. In view of the discussion hereinbefore mentioned, this application also deserves to be considered by granting substitution as prayed for. Accordingly, name of Netai Chandra Barick be directed to be struck off to the cause title and in his place the names of the petitioners be substituted. 18. In view of the discussion hereinbefore mentioned, this application also deserves to be considered by granting substitution as prayed for. Accordingly, name of Netai Chandra Barick be directed to be struck off to the cause title and in his place the names of the petitioners be substituted. The application is allowed in terms of prayer (a), (b), (c) and (d). 19. Consequent to the grant of such prayers, defendant Smt. Jayabati Barick will also be at liberty to file additional written statement in suit being TS 17 of 2017 within a period of three weeks from date. Application being GA 2704 of 2017 stands disposed of. Department is directed to incorporate necessary corrections in the Testamentary Suit being T.S. 17 of 2017. Let the suit being T.S. 01 of 2012 and T.S. 17 of 2017 be listed for hearing two weeks after Christmas Vacation. Urgent Photostat certified copy of this judgment, if applied for, be delivered to the learned counsel for the parties, upon compliance of all usual formalities.