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 t