1. Heard learned counsel for the appellants as well as learned counsel for respondent no. 1. Inspite of valid service of notice, respondent no. 2 has not appeared, although his brother respondent no. 1 has appeared and is contesting the appeal.

2. This Miscellaneous Appeal is directed against order dated 26.9.2002 by which the learned Additional District Judge, 1st Court, Begusarai rejected the petition filed by the applicants (appellants) for substituting them in place of deceased plaintiff no. 1 Ramasis Pandit and consequently dismissed Title Suit No. 01 of 1987 as abated.

3. Probate Case No. 58 of 1983 was filed by Ramasis Pandit and his brother Fudan Pandit under the provision of Sec. 276 of the Indian Succession Act. 1925 (hereinafter referred to as the "Act" for the sake of brevity) for probate of the Will executed on 1.4.1921 by one Most. Sukhia Devi in favour of her grand sons (Natis). namely Fudan Pandit and Ramasis Pandit. The plaintiffs claim was that the said Most. Sukhia Devi was the exclusive owner of the property in question and it was recorded in her name and when she became old, the said applicants, who were the sons of her only daughter, started looking after her and her properties on her behalf and Most. Sukhia Devi being pleased with their services executed the aforesaid Will in their favour on 1.4.1921 and subsequently died on 7.12.1930 and the said Will was her last Will.

4. On 6.5.1985 the respondents filed an application under Order I, Rule 10 of the Code of Civil Procedure for being added as objectors in the Probate Case and, challenged the genuineness of the Will, genealogy and, also the manner of devolution of the estate, although the said objectors were complete strangers to the family. The said respondents were impleaded as parties by the learned court below in the Probate Case which was subsequently converted into a regular suit bearing Title Suit No. 01 of 1987 under the provision of Sec. 295 of the Indian Succession Act.

5. Thereafter Plaintiff No. 2 Fudan Pandit died on 23.7.1989 and a petition was duly filed in the court below on 20.11.1989 informing that Fudan Pandit had died issueless but inspite of that no order was passed by the learned court below on the said petition and the suit continued in the name of both the plaintiffs. Subsequently, the remaining legatee, plaintiff no. 1 Ramasis Pandit also died and a petition was filed by the appellants on 14.2.2002 (annexure-1) for being substituted in his place as the appellants being the son and daughters of Ramasis Pandit were his only heirs and legal representatives.

6. The defendants-respondents filed their rejoinder on 3.6.2002 ( annexure-2) to the aforesaid substitution petition on the ground that provision of Order XXII of the Code of Civil Procedure was not applicable to the cases governed by the Act and since both the executors of the Will, namely Ramasis Pandit and Fudan Pandit, had died, no executor of the Will survives and hence no right to sue also survives as according to the provisions of the Act only an executor has the right to get the Will probated.

7. The said issue was considered and decided by the learned court below by its impugned order dated 26.9.2002 holding that Sections 222 and 223 of the Act clearly bars the right of substitution of the heirs and legal representatives of executors and since both the executors had admittedly died during pendency of the suit, the suit was dismissed as abated.

8. The said order is being challenged by the appellants on the ground that Sec. 295 of the Act specifically provides that in any case before the District Judge in which there is contention, the proceedings shall take the form of a regular suit, according to the provisions of Code of Civil Procedure, 1908, in which the petitioner for probate or letters of administration, as the case may be shall be the plaintiff and the person who has appeared to oppose the grant shall be the defendant, hence learned counsel for the appellan