K.K. Mehta, J.
1. 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. Mangal-sinhji 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 amendment of the prayer is asked for and granted that in effect a substantial transposition can be said to have been made. In my view, therefore, it is open to the applicant to challenge the order of transposition while challenging the order passed on the amendment of the prayer.
5. Next, in regard to the argument that the present application is premature, I do not think that there is much substance in that argument also, for what the applicant challenges is the order of the Court in regard to the transposition of the first opponent from the defendant to the plaintiff. The question whether he is a residuary legatee or not is a question on merits. In my view, the applicant is entitled to challenge the order of transposition as well as the order of amendment of the prayer without the question being decided as to whether the opponent No. 1 is a residuary legatee or not.
6. Now, I come to the substantial question which is raised in this application. The question in short which is raised is that in case where an executor, who has applied for a probate of a will of a testator, dies during the pendency of the probate proceedings, whether the probate proceedings abate on the ground that the right to sue is only personal to the executor and does not survive to the beneficiaries under the will. To decide this question, it is necessary to find out what is the substance of the proceedings, in such circumstances. The real nature of the proceedings where an executor applies for a probate of the will of the deceased testator, would be, asking for an order from the Court in his favour to the effect that the will is duly proved and to administer the estate of the deceased according to the provisions contained in the will. An executor, in the capacity of an executor, has no personal interest in the estate of the deceased. If he is a legatee under the will, it is an accident but it is not a characteristic of his position as an executor. In reality, therefore, he seeks to establish the will not for himself but as a representative of those who take benefits under the will. In other words, it is not a personal action but it is in reality a representative action. It is true that when an executor applies for probate, his right to do so is a preferential right by reason of his nomination as an executor by the testator himself; but for that reason it is difficult to say that it also follows that the action which be has commenced in applying for the probate of the will of the testator is an action which is in substance personal to himself, in other words that it is for his personal benefit. In fact, such an action is not for his personal benefit for as an executor he is not interested in the estate of the deceased except to administer the estate of the deceased, according to the directions of the testator contained in the will. The object of the executor in these proceedings is to get an adjudication not of any dispute in which he is personally interested but the object is to propound the will of the deceased for the benefit of those who take an interest in the will. In this view, jt seems to me, therefore, that the maxim actio persoualis moritur cum persona cannot apply to such a case, for it is in substance not a personal action. In other words, the action, which he has commenced is not for his benefit but he acts as a representative of those who are interested in the will of the deceased. Therefore, the action being a representative one, those whom he represents are equally interested in the prosecution of such a proceeding. In other words, therefore, if the executor dies, the action which he has commenced to propound the will of the deceased, does not come to an end with his death but can be continued by those whom he represents. The position of a petitioner for probate is thus somewhat similar, though not exactly the same, as a plaintiff under O. 1 R. 8 of the Civil Procedure Code. A plaintiff under O. 1, R. 8 Civil Procedure Code has a common interest between himself and the persons whom he represents. In the case of a petition for probate, there is a common interest between the executor and other persons interested in the will of the deceased in propounding the will. If under Order 1 Rule 8, any of the persons whom the plaintiff represents can intervene, I do not hink that in a petition for probate, a legatee or a beneficiary under the will, on a proper case being made out, cannot be allowed to intervene at any stage and to come on the record. It is true that an executor when applying for probate does not purport to act under Order 1, Rule 8. But that is also the position in a presumptive reversioner's suit. In the case of Venkatanarayana Pillai v. Subbammal, reported in ILR 38 Mad 406 : (AIR 1915 PC 124), it was held by the. Privy Council that on the death of a presumptive reversioner, the person next entitled to the reversion can be substituted in his place, on the ground that the presumptive reversioner's suit must be deemed to be a representative one. Therefore, even though a suit may not strictly fall under Order 1, Rule 8 of the Civil Procedure Code, if it is found that the suit is in substance a representative one by the plaintiff, in other words, that the plaintiff has filed the suit to prosecute a common interest between himself and others, then there would be no bar for those who have common interest with the plaintiff to come on record and intervene on a proper case being made out at any stage of the proceedings.
7. The other instance of such representative actions is in regard to members of the public interested in a public trust of a religious and charitable nature as was recognised by Their Lordships of the Privy Council in Raja Anand Rao v. Ramdas Daduram, ILR 48 Cal 493 : (AIR 1921 PC 123). (See pages 497, 498 of ILR Cal : p. 124 of AIR). The essence of such proceedings, therefore, is that the action is fought out by the plaintiffs not only for the plaintiffs' benefit but also in the interest of those whom they represent. In other words, those whom they represent are in effect, though not in name, parties to the suit from the beginning. In substance, probate means the copy of a will certified under the seal of a Court of competent jurisdiction with a grant of administration to the estate of the testator (See the definition of 'Probate' in Section 2 of the Indian Succession Act, No. 39 of 1926). In effect, therefore, when an executor is granted probate, he gets a copy of a will with the certificate of the Court that the will is duly proved with a grant of administration to the estate of the deceased. In the absence of an executor when a universal or a residuary legatee or a next-of-kin as the case may be, applies for letters of administration with the will annexed, what the Court grants in such a case is also a copy of the will certified under the seal of the Court stating that the will is duly proved, with an authority to administer the estate of the deceased, according to the directions of the will. iB substance, therefore, both under the probate granted to an executor as aiso under a grant of letters of administration with a copy of the will annexed to an universal legatee or a residuary legatee or to a next-of-kin, the effect of the grant is in the present context that the granted under an order of the Court administers the estate of the deceased according to the provisions of the will. It is true that an executor gets his preferen-tial right to the grant from his nomination by the testator in the will while the others get the grant by reason of an order of the Court, because they have got an interest under the will, but in either case the purpose of the grant is to administer the estate of the deceased according to the provisions of the will. This representative character can also be illustrated by the observations of Sir George Lee in Bittleston v. Clark, (1755) 161 ER 330, to the following effect :-
'A legatee cannot set up a win after it has been litigated between the executor and the next-of-kin and pronounced against, unless he can show the parties agreed to set aside the will by fraud or collusion, and so the Delegates held in Lewis v. Bulkeley, (1753) 161 ER 189n; but a legatee, if he is afraid the executor will not do justice, may intervene in his own interest.'
8. I may also refer to the observations of Sir Herbert Jenner in the case of Hayle v. Hasted, (1836) 163 ER 80 as follows:-
'the executors in the former will represent and are the protectors of the legatees under it, being specially entrusted by the deceased with the care and management o her property and to see her intentions carried into effect'
'the executors were bound to the best of their ability to defend the interests of the legatees under the first will, of which they stood before the. Court praying probate and which they must be taken to have considered as containing the last will of their testator and which as such it was their duty to see carried into effect; for it is not the interest of the executors but the intention of the testator which is to be attended to.'
9. It is, therefore, clear that an executor in applying for probate is not fighting a personal action but fighting for the interests of all the beneficiaries under the will. Therefore the action of an executor in applying for a probate is not in substance a personal action and as observed ear-lier by me the maxim actio personalis moritur cum persona could not apply to such a case. If the executor fails in his duty, any of those whom he represents are entitled to intervene and carry on the proceedings with a 'formal modification' that the prayer must then be for letters of administration with the will annexed.
10. The above view which I have taken has also been taken by Mr. Justice Venkatasubba Eao and Mr. Justice Eeilly in Rama Naidu v. Rangayya Naidu, ILR 56 Mad 346 : (AIR 1933 Mad 114). I respectfully agree with the view taken in this Madras decision.
11. As against this view, which I have expressed above and which has been expressed by the Madras High Court in the above-cited case, my attention has been drawn by Mr. Nanavaty, the learned Advocate for the applicant, first to a decision of Mr. Justice Harington in Sarat Chandra Banerjee v. Nani Mohan Banerjee, ILR 36 Cal 799, where the learned Judge observed as follows : -
'In my opinion, the right to sue in Order XXII means 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 a right to obtain probate of a will is a right different in its nature from a right to be appointed by the Court to administer the deceased's estate.'
In the case before Mr. Justice Harrington, the executor who was also the residuary legatee under the will died pending proceedings for probate and an application for substitution in the place of the executor w'as made by the widow and heir of the executor claiming a beneficiary interest in the estate of the deceased as the heir of the residuary legatee. While refusing the application of the widow, Mr. Justice Harington observed as above. With respect, I am unable to agree with the view expressed by Mr. Justice Harington, for that would be attaching importance to the form rather than to the substance of an action of an application for probate by an executor. The reasoning in this case was also dissented from by the learned Judges of the Madras High Court in ILR 56 Mad 346 : (AIR 1933 Mad 114) referred to above. Mr. Justice Reilly at p. 385 of the report (ILR Mad) : (at p. 117 of AIR) observed that the consideration of the substance of an action in which an executor applies for a probate was overlooked by Mr. Justice Harington.
12. Mr. Nanavaty next referred to the case of Chandramani v. Bepin Behari : AIR1932Cal206 , which is a decision of Suhrawardy and Graham, JJ. Mr. Nanavaty drew my attention to the following observation of the Court at p. 207:-
'It is true that the right to obtain probate of a will does not survive.'
These observations were based on the decision of Mr Justice Harington in ILR 36 Cal 799 referred to above. But having made these observations, the learned Judges proceeded to say as follows : -
'but in an appeal in a case where the judgment appealed against may operate as one in rem, different considerations will arise.'
Actually the Court allowed substitution in place of the executor who had died at the appellate stage. With great respect, the fact that an application for substitution was made at the appellate stage, should not make any difference to the principle, for if the executor is fighting a personal battle and for a personal right, the nature of that right remains the same, whether it is fought in the first Court or in the appellate Court. In this Calcutta case, the testator one Radha Krishna Maity died leaving a will of which he had appointed an executor. That executor applied for probate of the will. The widow of the testator, by name Chandramani Maity, produced a codicil under which the original executor was removed and she became legatee for Rs. 10,000/- due to the deceased on account of his life policy. Under the codicil, the first executor was a son of tho testator, viz., Barendra Natn Maity, who predeceased the testator. The next executor was Sachindra Nath Maity, who had renounced his appointment as an executor. So the only effective executrix was the widow Chandramani Maity. In the probate proceedings of the will and the codicil, the trial Court granted probate of the will and dismissed the application of Chandramani for the probate of the codicil. Against that decision Chandramani appealed and during the pendency of the appeal, she made a gift of the legacy, which she was to receive under the codicil to the two sets of applicants before the appellate Court, Chandramani died after making the said gift. The donees of the gift made an application for substitution at the appellate stage in the place of the deceased Chandramani for permission to carry on the appeal. The Court held that the appli-cants were the legal representatives of the deceased Chandramani. With great respect, if the view of Mr. Justice Harington in ILR 36 Cal 799 referred to above, was accepted, then the right which Chandramani was prosecuting at the appellate stage was the right to obtain the probate of the codicil in her capacity as an executrix. That she happened to be a donee under the codicil was an accident. Therefore, it is difficult to appreciate the distinction which Suhrawardy and Graham, JJ., attempted to draw between the case before Mr. Justice Harington and the case before them.
In my view, the actual decision of Suhrawardy and Graham, JJ., is contrary to the view expressed by Mr. Justice Harington. In the result, aa I read the decision of Suhrawardy and Graham, JJ., it is contrary to the view expressed by Mr. Justice Harington. This case, therefore, not only lends no assistance to Mr. Nanavaty but on the contrary, as I read it, goes against him.
13. Next, my attention was drawn by Mr. Nanavaty, to a decision of Mr. Justice Greaves of the Calcutta High Court in the case ot Haribhusan Datta v. Manmatha Nath Datta, ILR 45 Cal 862 : (AIR 1919 Cal 197). In that case, one Sreemutty Brityamani Dassee died on the 19th May, 1914. On the 23rd June, 1914, one Hem Bhusan Datta applied for a grant of the letters of administration with a copy of the will annexed oi the estate of the deceased. After the caveats were entered by one Manmatha Nath Datta and others on the 4th December, 1914, the matter was set dpwn as a contentious cause. Hem Bhusan Datta died leaving Haribhusan Datta as his heir and representative. The question then arose whether any right to sue had survived to the applicant. Mr. Justice Greaves held that the right to a grant of administration was a personal right derived from the Court, and although the applicant, if the will was established, might be the proper person to obtain % grant, this would be not by virtue ot any right of administration which he inherited from his father, but by virtue of the fact that, aa heir of the residuary legatee, he was the person most interested in the estate. After referring to the decision of Mr. Justice Harington in ILR 36 Cal 799 referred to above, Mr. Justice Greaves following the same decision rejected the application for substitution. The case before Mr. Justice Greaves was not a case where any substitution was asked for in the place of an executor appointed under the will. So, that case has no direct relevance to the case before me. But in so far as Mr. Justice Greaves relied on the decision of Mr. Justice Harington in ILR 36 Cal 799, my observations in this regard will be same as the observations which I have made in regard to the decision of Mr. Justice Harington in ILR 36 Cal 799 referred to above. I am, therefore, unable, with great respect, to follow the reasoning of Mr. Justice Greaves. In fact, in Mt. Phekni v. Mt. Manki, AIR 1930 Pat 618, Fazl Ali and Chatterji, JJ., though trying to distinguish the decisions of Harington, J. and Greaves, J., in effect did not follow the view of Mr. Justice Greaves and allowed the substitution at the appellate stage. As I have stated earlier, on principle it should make no difference whether the substitution has been asked for in the trial Court or at the appellate stage. Mr. Justice Chatterji, one of the members of the Division Bench, tried to distinguish the decision of Mr. Justice Greaves on the ground that the case which was before Mr. Justice Greaves related to an application made at the trial stage and that the application before them was made at the appellate stage. With great respect, on principle I am unable to appreciate this distinction in the contest.
14. Next, my attention was drawn by Mr. Nanavaty to the case of Edward Waston Coleston v. Mrs. Theresa Chetty : AIR1934All1053 , where the Court observed that no person, who had not been named in the will either expressly or by necessary implication, could be granted probate of the will and further where the executor, who had originally applied, has died since the proper course to be adopted is to proceed under Section 232. In the case before the Allahabad High Court, the executor appointed under the will of the testator, who had applied for probate, was refused probate on the ground that he was an unfit person by reason of his bad financial position and the learned trial Judge appointed the Administrator General as the executor and the administrator of the estate and ordered that the probate should be granted to him of the will and of the first codicil. The appellate Court held that the learned trial Judge had no jurisdiction to order probate to be granted to the Administrator General, who had not been named as an executor in the will. To this statement of law no exception can be taken, for there was no justification to appoint the Administrator General as an executor of the will in place of the one appointed by the testator and then to further grant him probate. At the appellate stage it was found that the executor named in the will, one Mr. Nitchell had died. Appeals were filed against the grant to the Administrator General by the legatees and other litigants and the Court observed that the proper course to adopt was to proceed under Section 232, under which, when an executor dies after having proved the will but before having administered all the estate of the deceased, a universal or a residuary legatee may be admitted to prove the will, and letters of administration with the will annexed may be granted to him of the whole estate, or of so much thereof as may be unadmi-nistered and that the question of granting letters of administration can be considered when a proper application is made by such a person. The question which arises before me did not arise in this Allahabad case. This case cannot, therefore, be of any assistance to Mr. Nanavaty.
15. In my view, therefore, in this case, the substitution of the opponent who claims to be a residuary legatee was properly allowed by the trial Court for continuing the proceedings and the trial Court was also right in allowing the amendment of the prayer from one for probate to one for letters of administration with the will annexed.
16. In the circumstances, the revision application fails and is dismissed. The rule is discharged. In the circumstances of this case, each party to bear its own costs of this revision application. The order for stay is discharged.