4 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. Chamber Summons No.82 of 2007 IN Petition No.924 of 2006 Suman Shantaram Kapadne .. .. Petitioner And Laxmi Rayaroth & ors. .. .. Proposed Petitioners V/s. Meerabai Ganpat Shejwal .. Respondent Ms.R.S. Pendkalkar for Petitioner. Ms.G. Shah i/by Mr.Sanjiv Sawant for Respondent Nos.1 to 3 & 5. ----- CORAM : SMT.ROSHAN DALVI, J. Dated : 29th August, 2008 P.C. : 1.The original Petitioner, who was the daughter and the sole legatee under the Will of Bhikaji Bhagoji Bodare, expired pending the Petition for Letters of Administration with the Will annexed of the said testator. 2.She had herself made a Will in favour of the Applicants who are her three daughters. The Applicants propose to step into the shoes of the Petitioner and prosecute Petition No.924 of 2006. 4 3.Respondent Nos.1 to 5 to the Chamber Summons are the other children of the original testator. Respondent No.6 is the daughter of the original Petitioner, since deceased who has not been bequeathed any part of the estate of the original Petitioner. 4.There is only one property left by the deceased under the Will. She is, therefore, the sole legatee. 5.It is contended on behalf of the Respondents that upon the death of the Petitioner before the Letters of Administration with the Will annexed to the Petition are granted, the Petitioner having died, the Petition abates. The Respondents have relied upon a judgment in the case of Thrity Sam Shroff vs. Shiraz Byramji Anklesaria & anr. 2007 (4) Mh. L. J. 56 relating to abatement of probate proceedings. That case related to filing of a Probate Petition. Hence, executor named in the Will would be required to prosecute that Petition. Upon the death of the executor or all the executors, the proceedings would die a natural death and accordingly abate. The heirs and legal representatives of the executor cannot be brought on record. Hence, Order 22 of the Code of Civil Procedure would not be applicable to that case. 4 6.The Petitioner has relied upon Section 233 of the Indian Succession Act, which reads thus:- “233. Right to administration of representative of deceased residuary legatees.- When a residuary legatee who has a beneficial interest survives the testator, but dies before the estate has been fully administered, his representative has the same right to administration with the Will annexed as such residuary legatee.” The Petitioner was the sole legatee as much as residuary legatee. She had a beneficial interest under the Will of the testator, her father, Bhikaji Bhagoji Bodare. She died pending Petition and before the estate was fully administered. Her representative has the same right to administration with the Will annexed as such residuary legatee. Consequently, the Applicants can prosecute the Petition earlier filed by the Petitioner who is their mother for granting Letters of Administration with the Will annexed of the testator Bhikaji Bhagoji Bodare. 7.It is clarified that the Applicants/Petitioners cannot, in the above Petition No.924 of 2006, seek to obtain probate or Letters of Administration with the Will annexed of their mother Suman, who is the original Petitioner. The Applicants shall be substituted in the place and stead of the 4 original Petitioner in Petition No.924 of 2006. 8.The Petition shall proceed. [SMT.ROSHAN DALVI, J.]