M.Y. Eqbal, J.

1. One Smt. Biraja Bala Das executed a Will in which the petitioner, Gokul Chandra Das and one Suresh Chandra Das were appointed as executors of the said Will. After the death of Smt. Biraja Bala Das who died on 27.7.1977 later Suresh Chandra Das, one of the executors, filed an application for grant of probate of the Will. In the said probate case the petitioner who was also one of the executors, was made opposite party. In the said probate case the petitioner appeared and filed his show cause denying and disputing the existence of the Will. The petitioner contested the case alleging that the Will is a forged document and the applicant was not entitled to get probate of the said Will. The said probate case was, therefore, converted into a title suit being No. 1/97. During the pendency of the said probate case the applicant, Suresh Chandra Das died on 22.4.2000 and his heirs who are opposite parties, applied for substitution of their names in place of the deceased - applicant. The opposite parties also filed an application for amendment of the application and prayed for grant of letter of administration in respect of the said Will. Both the applications were opposed by the petitioner. The Court below, in terms of the impugned order dated 6.6.2002, allowed both the applications and, held that the opposite parties are entitled to be substituted in place of the deceased- applicant and they are entitled to get letter of administration.

2. Mr. Debi Prasad learned Senior Counsel appearing on behalf of the petitioner assailed the impugned order as being illegal and wholly without jurisdiction. Learned counsel submitted that in a probate proceeding the provisions of the CPC do not apply and therefore, the question of; substitution of the legal heirs of the deceased-applicant does not arise. Learned counsel submitted that admittedly the petitioner is also one of the executors of the Will and even if the petitioner had denied the existence of the Will, he is entitled to the grant of probate in his favour on the death of one of the executors. According to the learned counsel denial of existence of the Will by the petitioner will not amount to renouncement of the Will. Learned counsel relied upon the decisions rendered in the case of Sailabala Dasi v. Baidya Nath Rakshit and Anr., AIR 1928, Cal 580; Most. Phekni v. Most. Manki, AIR 1930 Pat 618 and Edward Waston Coleston v. Mrs. Theresa Chitty and Ors., AIR 1934, Alld. 1053.

3. Mr. P.K. Prasad, learned counsel appearing on behalf of the opposite party, on the other hand, submitted that the petitioner renounced his executorship by denying and disputing the existence of the Will which is evident from the written statement filed by him. Leaned counsel submitted that in view of the renouncement of Will by the petitioner the heirs of the deceased- applicant who are the beneficiaries are entitled to substitution and grant of letter of administration. Learned counsel relied upon the decisions of Most. Triveni Kuer and Anr. v. Shankar Tiwari and Ors., AIR 1971 Pat 391; Arjun Prasad and Ors. v. Biteshwar Singh, AIR 1982 Pat 208 and Ramlal Sah v. Birendra Kumar, 1986 BBCJ 680.

4. Before appreciating the rival contentions of the parties it would be useful to refer some of the relevant provisions of the Indian Succession Act, 1925 (in short the Act).

5. Section 222 of the Act provides that probate shall be granted only to an executor appointed by the Will expressly or according to tenor. Section 224 of the Act provides that when several executors are appointed, probate may be granted to them all simultaneously or at different times! Section 229 of he Act lays down the circumstances where letter of administration can be granted. Section 229 reads as under :

"Grant of administration where executor has not renounced.--When a person appointed an executor has not renounced the executorship, letters of administration shall not be granted to any other person until a citation has been issued, ca