Direction of the Court necessary for continuing the proceedings by the legatee or persons interested.

RAMACHANDRA IYER, C.J. :- This appeal which is filed against the judgment of Kailasam, J. raises an important point relating to procedure in a probate action, namely, whether, in a pending application for the issue of probate if the sole executor dies before proving the will, it will be competent for a legatee or any other person interested, to intervene and continue the proceedings to prove the will and obtain letters of administration in his own right. That question has been answered in the affirmative in Rama Naidu v. Rangayya Naidu, ILR 56 Mad 346 : (AIR 1933 Mad 114), but the correctness of that decision has been challenged before us.

2. The appellant and the two respondents are the children of one Rao Bahadur Matoomal A. Asrani who died on 29-5-1960. It is alleged that the deceased had left behind him a will in which he had appointed Harichand C. Kalre, the husband of the second respondent as the sole executor. Under the said will the children of the testator are the principal legatees.

3. Harichand C. Kalre applied to this Court in O. P. No. 108 of 1961 for the grant of probate; but before the will could be proved he died on 27-7-1961. The respondents, two among the three children of the testator, who were also the legatees under the will applied to come on record in the petition for the issue of probate, as the legal representatives of the deceased executor and to continue the petition till letters of administration with the will annexed were granted to them. This application was opposed by the appellant who had by then entered a caveat. The Master overruled the objection and allowed the application with liberty to the respondents to carry out the necessary amendments to the petition for the grant of probate. This order has been upheld by Kailasam, J.

4. Though the matter has been dealt with as if it were one under Or. XXII, Rule 3, C.P.C., it is clear from the order of the Master as well as from the judgment of the learned Judge, that the respondents were brought on record with a view to enable them to obtain letters of administration with the will annexed on the authority of the decision in ILR 56 Mad 346 : (AIR 1933 Mad 114). It was held in that case that although in applying for probate, the executor asserted only a personal right, the proceedings were not for his personal benefit but were conceived in the interests of the legatees and thus the proceedings being representative in nature it was competent on the death of the executor for any legatee to come on record and continue the proceedings for obtaining letters of administration with the will annexed.

5. Mr. A. Ramachandran appearing for the appellant contests the correctness of this view, for the reason than an application for probate would neither be regarded as anything but personal to the executor, nor could a proceeding therefor be similar to a representative action coming within the previsions of O. 1, R. 8, C.P.C., the interests of the various legatees in the estate under the will not being identical. In support of this contention, learned counsel places considerable reliance on the decision in Saratchandra Banerjee v. Mani Mohan Banerjee, ILR 36 Cal 799, where on facts almost similar to the present case, Harrington J. declined the application of the legatee to substitute her name in the place of a deceased executor and permit her to obtain letters of administration in the same petition. It was pointed out in that case that the words "right to sue" in Order XXII rule 3 C.P.C. could mean only the right to bring a suit asserting a right to the same relief which the deceased plaintiff asserted at the time of his death and that as nobody but the executor could apply for probate, there was no survival of that right. It was further held that a probate and letters of administration were distinct reliefs as the executors right to probate was derived by virtue of the appointment made in the will by the testator, whereas an administrator could obtain the righ