OD-18 IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION ORIGINAL SIDE APOT/9/2026 IA No.GA/1/2026 SHRI SUDIPTA KUMAR SETT -VERSUS- SUSMITA PAL BEFORE: HON'BLE JUSTICE DEBANGSU BASAK -A N D- HON'BLE JUSTICE MD. SHABBAR RASHIDI For the Appellant : Mr. Subrata Kumar Dutta, Adv. Mr. Sailesh Kumar Mishra, Adv. Mr. Prasenjit Das, Adv. For the Respondent : Mr. Rahul Karmakar, Adv. Mr. Lalratan Mondal, Adv. HEARD ON : 14.07.2026 DELIVERED ON : 14.07.2026 DEBANGSU BASAK, J.:- 1. Appeal is directed against order dated September 12, 2025 passed in IA No.GA/3/2025 TS/1/2020. 2. Learned Advocate appearing for the appellant submits that, appellant is the son of the testator. Testator expired on February 25, 2018 leaving 2 behind him surviving his widow, the appellant as his son and two daughters. 3. Learned Advocate appearing for the appellant submits that, a probate proceeding was initiated in respect of the alleged Will of the testator dated August 12, 2005. Appellant contested such probate proceeding. Such probate proceeding was registered as a contentious cause and converted into Testamentary Suit No.1 of 2020. 4. During the pendency of the testamentary suit, the sole executrix expired on September 24, 2022. Application for substitution was made on March 11, 2025. He submits that, on the death of the sole executrix and the beneficiary, the estate should be divided in accordance with intestate succession. 5. Respondent is represented. 6. We find from the records that, the testator executed a Will dated August 12, 2005 probate of which was sought for. The probate proceeding was contested and registered as Testamentary Suit No.1 of 2020. 7. Probate proceedings which ultimately stood registered as Testamentary Suit no.1 of 2020 was filed by the sole beneficiary and the sole executrix. Testator appointed his wife as the sole executrix of his estate by the Will dated August 12, 2005. 8. Sole executrix and sole beneficiary expired on September, 24, 2022. Appellant and the two daughters of the testator are the heirs and legal representatives of such sole executrix and beneficiary. 3 9. One of the daughters of the testator applied for substitution on March 11, 2025. Court is informed that the other daughter gave consent to the daughter applying for substitution to continue with the testamentary suit. By the impugned order, learned Single Judge allowed the application for substitution after holding that the right to sue survived the death of the sole beneficiary. 10. The death of the sole beneficiary or the executrix is not an event which renders the Will of the testator incapable of being considered for grant of probate or Letters of Administration. The testamentary proceedings were pending on the date when such person expired. The applicant for substitution is one of the heirs and legal representatives of the sole beneficiary. The right to sue, as rightly held by the learned Single Judge, survived in favour of the applicant on the death of the sole beneficiary as the heir of the sole beneficiary. 11. In such circumstances, we do not find any ground to interfere with the impugned order dated September 12, 2025. 12. APOT/9/2026 along with the connected application are dismissed without any order as to costs. (DEBANGSU BASAK, J.) 13. I agree. (MD. SHABBAR RASHIDI, J.) A/s.