Anil K. Sen, J.
1. The defendants in a suit for grant of Letters of Administration are the petitioners before us in this revisional application which is directed against an order dated December 6, 1980, passed by the learned Subordinate Judge, First Court, Howrah, in L. O. A. Suit No. 29 of 1965. By the order impugned the learned Judge has allowed an application for substitution on the death of the two original applicants for the grant. It will be necessary to refer to the material facts in order to appreciate the real controversy between the parties now before us and those may be set out briefly as follows.
2 Sm. Raj Kumari Debi and Sm. Kunti Debi as residuary legatees applied for grant of Letters of Administration with copy of a Will annexed in respect of the estate of the deceased Sital Shaw. That was registered as L. O. A. Suit No. 91 of 1964 which had been renumbered as 29 of 1965. The prayer for grant was strongly contested by the present petitioners before us who challenged the Will itself. That challenge being overruled there was a grant in favour of the applicants made in the year 1971. The present petitioners preferred an appeal to this court against the said order making the grant being F. A. 431 of 1971. Pending the said appeal Sm. Kunti Debi died on August 14, 1973. Sm. Raj Kumari Debi also died on June 23, 1977. On May 8, 1978, the aforesaid F. A. 431 of 1971 was dismissed.
3 In that background on June 27, 1980, an application was filed by the present opposite parties before us for substitution. In the application for substitution the petitioners Nos. 1 to 8 claimed themselves to be the heirs and legal representatives of Raj Kumari Debi, while the petitioners Nos. 7 to 8claimed themselves to be the heirs and legal representatives of late Kunti Devi. In the application they pleaded that the original applicants for the grant having died it is necessary that the heirs and legal representative of the said applicants should be brought on record and should be allowed to proceed with the suit and take out the Letters of Administration on paying the necessary stamp duty. Such a prayer was made ostensibly under Sections 141, 146 and 151 of the Code of Civil Procedure read with Order 1, Rule 10 or Order 22 of the said Code. This application was again contested by the petitioners as they contested the original application for the grant. They took the stand that such an application is not maintainable in law. That objection having been overruled, the learned Judge has allowed the prayer for substitution and has further directed that the plaint meaning thereby the application for the grant of Letters of Administration be amended accordingly. Feeling aggrieved the petitioners have moved the present revisional application which has been heard on contest by the opposite parties -- the petitioners in the application for substitution.
4. Mr. Banerjee appearing in support of the revisional application has challenged the order on the ground that the right of the original applicants for the grant being a personal right did not survive their death nor did it devolve upon their heirs and legal representatives so as to entitle such heirs and legal representatives to be substituted in place of the original applicants. Reliance is placed strongly on two earlier decisions of this court in the cases of Sarat Chandra Banerjee v. Nani Mohan Banerjee, (1909) ILR 36 CM 799 and Haribhusan Datta v. Manmatha Nath Dutta, ILR 45 Cal 862 : (AIR 1919 Cal 197). This contention of Mr. Banerjee has been strongly contested by the learned Advocate appearing on behalf of the opposite parties. According to him, the correctness of the decisions relied on by Mr. Banerjee are open to doubt and that in any event those decisions being explained other High Courts have consistently taken the view that on the death of the original applicant his heirs and legal representatives inheriting the legacy can be brought on record on substitution.
5 We have carefully considered the rival contentions put forward, before us. The decision in the case of SaratChandra Banerjee v. Nani Mohan Banerjee (1909) ILR 36 Cal 799, which was referred to by a later Bench decision of this court in the case of Haripada Saha v Gobinda Chandra Saha (1947) 51 Cal WN 917, stands on a little different footing than the case now before us since there the applicant being the executor named in the Will derived his personal right on appointment by the testator. The other decision relied on by Mr. Banerjee, however, has gone further to hold that even the right of the residuary legatee in this regard is a personal right which does not survive in favour of his heirs and legal representatives though such heirs and legal representatives may acquire a right of their own for having a grant being the heirs to and having the beneficial interest in the residuary legacy. Even these decisions go to show that in a situation like the present one, the heirs and legal representatives of the original applicant for the grant if he was a residuary legatee can come forward and lay a claim for a grant in theii favour if they have inherited the legacy and what is said in these decisions is that they cannot come by way of substitution but must come in their own rights. But as pointed out by this Court in the case of Haripada Saha, such a distinction is more of form than of substance when it does not affect the merits. Moreover these decisions have failed to take into consideration an important aspect, viz., the true nature of the proceeding initiated on an application for a grant. As pointed out hy the Madras High Court in the case of Rama Naidu v. Rangayya Naidu, AIR 1933 Mad 114:
'The proper view to take is that, his object in commencing the proceeding is to get an adjudication in the interests not only of himself but of others, that the will propounded is genuine and valid. In inviting the Court to pronounce in favour of the will the executor is acting in a representative capacity, that is to say, for the benefit of the whole class of persons including himself interested in having it established. The position of a petitioner for probate is not dissimilar to that of a plaintiff under Order 1, Rule 8 of Code of Civil Procedure. What the rule contemplates is a common interest and in the case of a petition for probate there is an identity of interest on the part of the whole body of persons claiming under the will. One of the necessary incidents of a representative suit is that any person for whose benefit it is instituted may intervene and ask to be made a party under Order 1, Rule 8, Clause 2. If a petition for probate stands on a footing similar to that of a representative suit it is right in principle to extend the analogy and hold that any legatee or beneficiary may on a proper case being made out intervene at any stage and claim to come on record.'
6. That was also the view approved in the cases of Mt. Phekni v. Mt. Manki, AIR 1930 Pat 618 and Kamalamma v. Somasekharappa, AIR 1963 Mys 136. Indeed this Court itself had taken a similar view in the case of Chandramani Maity v. Bipin Behari Sanyal, AIR 1932 Cal 206 where the decision in the case of Sarat Chandra Banerjee was distinguished. This decision, however, was not taken into consideration in the case of Haripada Saha v. Gobinda Chandra Saha (1947) 51 Cal WN 917.
7. This case, however, stands on different footing and the aforesaid disputed questions are not really involved in this case because of the fact that here the will had been proved and the grant had already been made in favour of the original applicants, the residuary legatees. The position in law, in our view, is that the grant having been made in favour of the applicants they have died before they could administer the estate. In such a situation the law contemplates under Section 233 of the Indian Succession Act that such of the legal representatives of the original grantees, who are otherwise eligible in law can come forward to administer the estate. However, inappropriately worded the application filed before the learned Judge in the trial court was such an application under Section 233 of the Indian Succession Act and the learned Judge should have disposed of the application as such and not as an application for substitution. It should be pointed out that there is legal bar to the grant being in favour of a minor and the learned Judge has failed to take note of the fact that three or four of the applicants before him now are minors. Incidentally it was contend-ed by Mr. Banerjee before us that Section 233 of the Indian Succession Act can have no application because the original grantees, namely, Raj Kumari Debi or Kunti Debi could not start, administration at all so that it could be said that the estate had not been fully administered. In our view, there is no substancein this contention because what is left unadministered whether in part or in full is left unadministered and comes within the scope of Section 233 of the Act : that section in our view is not intended to be limited in its application to estates partly administered and thus exclude the estate which has not been administered at all. The interpretation suggested by Mr. Banerjee does not appear to be reasonable or consistent with the scheme of the Act nor does its terms admit of such an interpretation.
8. In the result, this application succeeds in part. The impugned order being set aside, we remand the application back to the learned Judge in the court below for allowing the applicants to modify the application appropriately ex-eluding the minors therefrom and converting the application as one under Section 233 of the Indian Succession Act. Once the application is so amended, the will having already been proved, the learned Judge is directed to make the grant in their favour so as to enable them to complete the administration.
9. There will be no order as to costs.
10. Let the order be communicated to the court below forthwith.
B.C. Chakrabarti, J.
11. I agree.