IMPORTANT POINT
A proceeding for grant of Letters of Administration under Section 278 of the Indian Succession Act can continue despite the death of executors, as the provisions governing probate do not apply.

JUDGMENT

K.R. Mohapatra, J.

This matter is taken up through hybrid mode.

2. A composite order dated 21st September, 2016 passed by learned Civil Judge (Senior Division), 1st Court, Cuttack in OS No.6 of 2015 is under challenge in both the CMPs, whereby two applications, one filed by the Petitioners on 12th May, 2016 for substitution of deceased Petitioner No.2, namely, Sadananda Maharana was dismissed and another petition dated 30th June, 2016 filed by Opposite Parties was allowed holding the proceeding to be not maintainable.

3. Since both the CMPs involve similar questions of facts and law, those are taken up together for the sake of convenience of discussion.

4. Facts in nutshell necessary for adjudication of these CMPs are that one Saria Bewa executed her last WILL on 15th December, 1984 in favour of one Trailokya Maharana and Sadananada Maharana, both are sons of Bhikari Maharana. After death of Saria Bewa, said Trailokya Maharana and Sadananda Maharana filed Misc. Case No.26 of 1992 before learned District Judge, Cuttack under Section 278 of the Indian Succession Act, 1925 (for brevity 'the Act') for grant of Letters of Administration. Upon receipt of summons, the Opposite Parties appeared. During pendency of the proceeding, Trailokya Maharana died on 12th December, 2002 and his legal heirs (LRs) were brought on record by substitution. Since the matter became contentious, case record was transferred to learned Civil Judge (Senior Division), 1st Court, Cuttack to adjudicate the proceeding. Accordingly, it was registered as OS No.6 of 2015. During pendency of the proceeding, Sadananda Maharana died on 12th March, 2016. Thus, an application was filed on 12th May, 2016 under Order XXII Rule 3 CPC for substitution of deceased Sadananda Maharana. The said application was objected to by the Opposite Parties by filing objection. Likewise, the Opposite Parties also filed an application on 30th June, 2016 alleging that due to death of Trailokya and Sadananda, namely, both the executors of the WILL the Probate proceeding cannot survive and the same being not maintainable is liable to be dismissed. Learned trial Court heard both the applications and passed a composite order holding that in view of Section 222 of the Act, Probate can be granted only to an executor. Since the Probate proceeding was initiated at the instance of the executors so named in the WILL, it would survive till the executors are alive. The Probate proceeding is co-terminus with the death of the executors, as there would be no occasion to grant any Probate. In such situation, the Probate proceeding suffers a natural death. It is further observed that after being contentious, a Probate proceeding is tried like a suit, but that does not transform the proceeding into a suit under the Code of Civil Procedure, 1908 in view of Section 222 of the Act. Hence, learned trial Court dismissed the petition filed under Order XXII Rule 3 CPC for substitution of the LRs of deceased Sadananda and consequently allowed the petition filed by Opposite Parties holding that the Probate proceeding to be not maintainable. Being aggrieved, these CMPs have been filed.

5. Learned counsel for the parties do not dispute the aforesaid factual position.

6. Mr. Bhuyan, learned counsel for the Petitioners opened his argument submitting that learned trial Court proceeded on misconception that the proceeding has been filed to probate the WILL. But the proceeding was in fact filed for grant of Letters of Administration. Had it been filed for grant of Probate, it would have been terminated on the death of both the executors of the WILL in view of Section 222 of the Act. But in the instant case, the testatrix had not appointed any executor of the WILL. Being incognizant of the fact that Trailokya and Sadananda filed application under Section 278 of the Act for grant of Letters of Administration, learned trial Court misconstruing it to be a proceeding under Section 276 of the Act, passed the impugned order. U