1. The present revision petition is directed against an order dated 28.02.2009 passed by the learned ADJ, allowing an application filed by the respondent No.2 (respondent No.6 in the court below) wherein, she sought her transposition as a petitioner in place of Late Shri Bawa Kirpal Singh, the petitioner in the probate petition, who was appointed as the executor of a will dated 02.01.1994, executed by Late Dr.R.K. Bhan. By the impugned order, the aforesaid application filed by the respondent No.2 was allowed and she was permitted to be transposed as a petitioner in the pending probate proceedings with directions to file the amended petition.

2. After the aforesaid order was passed, respondent No.2 filed the amended petition wherein she sought grant of letters of administration in her favour, with respect to the estate of Late Dr.R.K. Bhan. Replies to the aforesaid amended petition have also been filed by the petitioner herein (respondent No.7 in the court below) and the other respondents. Copy of the amended petition and the reply is handed over by the counsel for respondent No.2 in the Court and is taken on record.

3. Counsel for the petitioner states that in view of the provision of Section 222 of the Indian Succession Act, 1925 (hereinafter referred to as „the Act?), probate can only be granted in favour of the executor, appointed by the Will and in the present case, the sole executor having expired on 09.08.2008, the proceedings stand abated. He seeks to draw support from a judgment of a Division Bench of Bombay High Court in the case of Thrity Sam Shroff vs. Shiraz Byramji Anklesaria & Anr. reported as AIR 2007 Bombay 103 and of a Single Judge of this Court in the case of Inder Chand Nayyar vs. Sarvadeshik Arya Pratinidhi Sabha & Anr. reported as AIR 1977 Delhi 34. Per contra, counsel for respondent No.2 relies on the provisions of Section 232 of the Act and submits that in the present case, his client is entitled to grant of letters of administration in respect of the will in question.

4. A perusal of the application filed by respondent No.2 shows that a prayer was made by her for being transposed as a petitioner in place of the deceased petitioner, Late Shri Bawa Kirpal Singh. However, no specific prayer was made by the respondent No.2, for converting the proceedings from a probate petition to a petition for grant of letters of administration, nor was an amendment of the prayer clause sought by her. Therefore, strictly speaking, the amended petition filed by respondent No.2 pursuant to the impugned order, is beyond the scope of the amendment sought in the application or granted by the court below. Pertinently, the said objection was not taken either by the petitioner herein (respondent No.7 in the court below) or by Smt. Lila Bhan and Smt. Sunita Kaul (contesting respondents No.2-A and 2-C in the court below).

5. It is an undisputed position that had the respondent No.2 filed a substantive application before the trial court, not only seeking her transposition as the petitioner, but seeking grant of letters of administration instead of a probate in respect of the Will dated 02.01.1994 executed by Late Dr.R.K.Bhan, the amended petition as filed by her on 02.04.2009 could be entertained. But in the absence of such a prayer, no leave was granted vide order dated 28.2.2009 to convert the probate petition to a petition for grant of letters of administration. Hence, respondent No.2 acted beyond the scope of the amendment granted in her favour by the impugned order.

6. The aforesaid technical flaw can however be overcome even at this stage. In the case of Harbans Singh vs. State & Ors. reported as 2010 II AD (Del) 191, decided by this Court on 19.1.2010, when confronted with similar facts where the petitioner therein challenged the order of the learned ADJ by which he allowed the application of the respondents therein for permission to be substituted in place of the original petitioner/exe