Heard learned counsel for the parties.

2. The following questions of some importance have been raised in these proceedings: when a caveator-defendant dies, whether it is for the plaintiff/petitioner to bring on record the heirs and legal representatives of the deceased-caveator as defendants in a suit ?; and if the plaintiff fails to do so whether the suit and the petition, both abate ? And; if it is held to be not mandatory for the plaintiff to do so whether the suit only would stand dismissed as abated or infructuous and in that eventuality the petition for probate would be liable to be allowed as uncontested ?

3. The factual matrix, sans unnecessary details, is as follows: The plaintiff filed a petition for probate of the last Will and testament dated 2nd June, 1988 of Dr.Anant Rajaram Deshpande. He died at Bombay on or about 16.8.1988. The plaintiff is the sole executor named in the Will. The defendant - Suneel Anant Deshpande was the son of Dr.Anant Deshpande. After service of a citation, Suneel Deshpande had filed caveat and objected the grant of probate. The caveator - Suneel also died at Bombay on 3rd January, 2007 leaving the Will dated 23rd May, 2003, whereunder he appointed his widow - Meena Suneel Deshpande and his two daughters, namely, Sujata Rohit Tarkunde and Renuka Tushar Damle, as executors of his Will and Trustees of his estate. The advocates of the heirs of Suneel by their letter dated 5th February, 2007 addressed to the advocates for the plaintiff informed them the names of the heirs and next of kin of deceased - Suneel with their residential addresses expecting them to take out appropriate proceedings to bring them on record. The plaintiff, however, have not taken any steps to bring the heirs and legal representatives of the deceased - caveator on record.

4. I have heard learned counsel for the parties at considerable length and with their assistance have gone through the relevant provisions of the Indian Succession Act, 1925 ("the Act" for short) and the Bombay High Court (Original Side) Rules ("the Rules" for short) so also the Code of Civil Procedure, 1908 ("the CPC" for short) and other material placed on record. At the outset, the contention urged by counsel for the defendant is that the entire proceeding abates and deserves to be dismissed as such since it was mandatory for the plaintiff to bring the heirs of deceased-defendant on record within the prescribed time. As against this, counsel for the plaintiff urged that the sole caveator has died and in view thereof an objection for grant of probate does not survive and, therefore, the suit deserves to be dismissed as infructuous and the petition for probate may be allowed as uncontested.

5. Mr.Setalvad, learned counsel for the plaintiff, submitted that the petition for probate is different from a suit. It is not a contentious/adversarial proceeding like a suit, which commences with filing of a plaint. It is only when a person opposes grant of probate by filing caveat that the proceedings become contentious/adversarial in nature. After inviting my attention to section 295 of the Act he submitted that cases in which there is contention, the proceedings shall take, as nearly as may be, the form of a civil suit under the provisions of the CPC. In the present case he submitted, that there is no contention as the opposing parties, namely, the heirs of deceased caveator have not entered a caveat though they had notice of pending testamentary proceedings for probate and they had an opportunity, as contemplated under the Rules, to enter a caveat and to oppose the grant of probate. However, they have chosen not to do so after death of the deceased caveator, and that is how the proceedings have rendered non contentious and as a result thereof the suit deserves to be dismissed and probate be granted as non contentious probate proceedings. He then submitted in any case t