1. This is an application by Haribhusan Datta for an order that the fact of the death of his father Hem Bhusan Datta be recorded, that the cause title of the suit should be amended by substituting his name in place of that of his deceased father, and that other consequential amendments should be made in the petition whereby these proceedings were originated, and that thereupon the suit should be proceeded with and Letters of Administration with copy of the Will annexed of Sreemutty Nrityamoni Dassee should be granted to the applicant.
2. Sreemutty Nrittyamoni Dassee died on the 19th May 1914. Hem Bhusan Datta on the 23rd June 1914 petitioned this Court for a grant of administration with a copy of the Will annexed to the estate of Nrityamoni dated the 19th May 1914. I have not before me a copy of the Will or of the petition, but I understand that no executors were named in the Will and that Hem Bhusan Datta was the residuary legatee. A caveat or caveats were entered by the defendants and, on the 4th December 1914, it was ordered that the matter should be set down as a contentious cause. On the 8th August 1917, Hem Bhusan Datta died leaving the applicant as his son, heir and legal representative. By virtue of Section 197 of the Succession Act the applicant is now the person primarily entitled to a grant if the Will is established.
3. It is urged on behalf of the applicant that now that the matter is a contentious cause, it is governed by the Code of Civil Procedure and that, under the provisions of Order XXII, he is entitled to be substituted as plaintiff as the right to sue survives. The sole question that arises on this application is whether any right to sue has survived to the applicant. I do not think that it has. The right to a grant of administration is a personal right, and although the applicant, if the Will is established, may be the proper person to obtain a grant, this would be so, not by virtue of any right to administration, which he inherits from his father, but by virtue of the fact that as heir of his father to the residue he is the person most interested in the estate. The reasoning of Mr. Justice Harington in Sarat Chandra Banerjee V. Nani Mohan Banerjee 3 Ind. Cas. 995 ; 36 C. 799 seems to me to be equally applicable to the present application: in that case the executor named in the Will of which Probate was sought died before obtaining a grant, his widow sought to be substituted for him in the suit as being his heiress, and Mr. Justice Harington held that as the executor's right was derived under the Will, the right did not survive to his widow: in the present case the right which Hem Bhusan sought was a right from the Court and if he had obtained a grant, his title would have been derived from the Court and cannot, I think, devolve on his heir.
4. The result is, that the application fails and must be dismissed with costs. There is nothing to prevent the applicant, if he is so minded, from applying for a grant, and if be does so, it is open for him to apply to adopt such material proceedings as have been taken in the present suit.