JUDGMENT : This is a civil revision application against an order passed by the learned Civil Judge, Senior Division, Morvi, allowing an amendment of the prayer by the substituted applicant in Probate Case No. 8/1957 on the file of the learned Judge. The matter arises this way :-

The deceased testatrix Bai Jivubai made a will dated 14th December, 1946, appointing one Jadeja Shivubha Madhavsang as an executor of her said will. After the death of the testatrix, Shivubha applied for the probate of the will on 6th February, 1957. The four opponents to the said application were the heirs of the deceased and each of them was a beneficiary under the will of the deceased testatrix. The applicant executor died pending probate proceedings on 17th January, 1960. On the 25th January, 1960, opponent No. 1 in the original Probate Application, Jadeja Mangalsinhji Shivsinhji, who is also opponent No. 1 in the present revision application applied to the Probate Court that he be transposed as a plaintiff in place of the deceased executor. That application was allowed and Jadeja Mangalsinhji Shivsinhji was allowed to be substituted as a plaintiff in place of the deceased executor and to continue the proceedings as the plaintiff-applicant. On 28th of January, 1960, the substituted applicant Jadeja Mangalsinhji Shivsinhji applied for an amendment of the prayer in the probate petition, which became necessary on the applicant having been substituted, for in the original petition for probate, the executor being the applicant, the prayer was for the issuing of a probate of the Will of the deceased. The substituted applicant not being an executor was not entitled to probate but could only be entitled to letters of administration with the will annexed. In these circumstances, the prayer in the original probate petition was sought to be amended by substituting a prayer for the grant of letters of administration with a copy of the will annexed. An order was passed by the learned Civil Judge, Senior Division, Morvi, on the 26th April, 1960, allowing this amendment of the prayer. The present revision application is directed against this order, allowing the amendment of the prayer by the original opponent No. 4, who was one of the heirs of the deceased. The order of substitution of the opponent No. 1 in place of the deceased executor as plaintiff is also challenged.

2. The revision application is supported on the ground that the right to probate is a right personal to the executor and that on the death of the executor, the right to sue does not survive and that the application for probate should therefore be deemed to have abated.

3. A point has also been taken on behalf of the opponent here, that the first order of transposition was made on the 25th January, 1960 and that there was no revision application against that order and so that order stood. It was further contended that the present revision petition is directed against the order allowing the amendment of the prayer and that therefore in this revision application the order of transposition cannot be questioned. It may be stated at this stage that the amendment of the prayer was allowed subject to the applicant proving that he was a residuary legatee. It was further said against the present revision application that the present application is premature, for unless the question whether the substituted applicant is a residuary legatee is decided in his favour he would have no right to prosecute the probate proceedings and in this view of the case, the present revision application would be premature. Further it is contended by the respondents on merits that the order of transposition and of amendment by the learned Civil Judge was correct in law.

4. Now, so far as the objection of the opponents that the order of transposition cannot be questioned, I do not think that there is much substance in it. When the order of transposition was made, no amendment of the prayer was asked for. It is only after the amendmen

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