Holding

Section 213 bars a decree or final order in a suit involving a claim as executor or legatee unless probate is obtained, but the suit may be heard and a provisional decree may be passed, to take effect only upon probate.

Summary

Binapani Kar Chowdhury filed a title suit in 1995 challenging the validity of a sale deed executed by the deceased Avarani Bose in favour of S.S. Basu. The plaintiff died in 1997 and the first respondent, claiming to be the executor and legatee under a 1996 will, was substituted as the legal representative under Order 22 Rule 3 CPC. The trial court and the Calcutta High Court refused to hear the suit pending probate of the will, invoking Section 213 of the Indian Succession Act, 1925. The Supreme Court held that while Section 213 bars a decree or final order in a suit involving a claim as executor or legatee unless probate is obtained, the suit may be heard and a provisional decree can be passed, effective only upon production of probate. Consequently, the Court directed the trial court to proceed with arguments and deliver judgment, with any decree to be provisional pending probate. The appeal was disposed of without expressing any view on the merits of the title dispute.

Issues considered

Whether Section 213 of the Indian Succession Act, 1925 bars the trial court from passing a decree in a suit where the executor/legatee is substituted but probate of the will is not yet obtained.
Whether the trial court can be directed to hear and decide the suit despite the absence of probate.
Whether substitution of an executor/legatee under Order 22 Rule 3 CPC is permissible without probate.

Legislation cited

Code of Civil Procedure, 1908s. Order 22 Rule 3, s. Section 115, s. Section 15
Indian Succession Act, 1925s. 213

Subjects

Section 213probateexecutorlegateetitle suitsubstitutionOrder 22 Rule 3 CPCcivil proceduredecree provisional

Judgment

A BINAPANI KAR CHOWDHURY
...
v.
SRI SA TY ABRA TA BASU AND ANR.

MAY 16, 2006

B [B.P. SINGH AND R.V. RA VEENDRAN, JJ]

Succession Act. 1925-Section 213-Title suit by testator of will
questioning validity of sale deed in favour of the defendant-Death of
testator during pendency of the suit-Substitution of executor/Legatee of the
C will of the deceased, as legal heir·-Pendency of suit without decision for a
long time- -Prayer for early hearing rejected by courts below on 1he ground
that the suit could nut be decided till the Will was probated--Held: Section
213 bars a decree or final order in a suit which involves a claim as an
executor or a legatee in the absence ofprubate of the Will--- In view of long
D pendency of the suit and in view of the fact that the executor/legatee seems
to be deliberately protracting the probate proceedings. trial court is directed
to deliver judgment in the suit-Ifsuit is decreed, the same to come into effect
only after producing the probate---Code of Civil Procedure. 1908--0rder 22
Rule 3.

E Plaintiff filed a title suit against the appellant-defendant questioning
the validity of the sale deed executed in favour of the appellant. During
pendency of the suit, the plaintiff died. Respondent No. 1 was brought
on record as legal representative of the deceased on the basis of a Will.
The suit was pending without a decision. Appellant filed application for
F early hearing on the ground that respondent No. 1 was deliberately
prolonging probate proceeding. The application was rejected by trial
court on the ground that the suit could not be disposed of till the probate
was granted. Applicant's revision petition thereagainst was also dismissed
by High Court on the same ground. Hence the present appeal.

G Disposing of the appeal, the Court

HELD: 1. Section 213 of Indian Sucession Act, 1925 creates a bar
to the establishment of any right under a Will by the executor or legatee
unless probate or letters of administration of the Will have been
H obtained. 1762-D-El
758
t

BlNAPANl KAR CHOWDHURY v. S.S. BASU 759

-
~ ...
Mrs. Hem Nolini Judah v. Mrs. lso/yne Saro) bashini Bose, AIR
(1962) SC 1471, relied on.
A

2. Where the right of either an executor or a legatee under a Will
is in issue, such right can be established only where probate (where
an executor has been appointed under the Will) or letters of
administration (where no executor is appointed under a Will) have B
been granted by a competent court. Section 213 does not come in the
way of a suit or action being instituted or presented by the executor
or the legatee claiming under a Will. Section 213, however, bars a
decree or final order being made in such suit or action which involves
a claim as an executor or a legatee, in the absence of a Probate or C
Letters of Administration in regard to such a Will. Where the testator
had himself filed a suit (seeking a declaration and consequential reliefs)
and he died during the pendency of the suit, the executor or legatee
under his will, can come on record as the legal representative of the
deceased plaintiff under Order 22 Rule 3 CPC and prosecute the suit.
Section 213 does not come in the way of an executor or legatee being D
so substituted in place of the deceased plaintiff, even though at the stage
of such substitution, probate or letters of administration has not been
granted by a competent court. [763-A-D)

2.1. The present suit, wherein the validity of the sale deed
executed in favour of the appellant by· the plaintiff is. questioned, has
E
been pending without a decision for more than a decade. The first
respondent has not even chosen to appear in this appeal nor explained
the delay in securing probate, thereby lending credence to the claim
of the appellant that the first respondent is deliberately protracting the
probate proceedings. (764-B-C) F
2.2. Therefore, with a view to do complete justice between the
parties, it is appropriate to direct the trial court to proceed to hear
arguments and deliver judgment in the suit. Nothing further will be
required, if the suit is to be dismissed. But if the suit is to be decreed,
the trial court should make it clear that the judgment and decree will G
come into effect only on the first respondent obtaining and producing
the probate of the will, and till then the decree should be considered
only as provisional and not to be given effect. [764-C-E]

Arijit Mullick v. Corporation of Calcutta, (1979) 2 Cal. L.J. 426 and H
760 SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A Gobinda Bal/av Chakraborty v. Biswanath Mustaji, AIR (1980) Cal. 143,
referred to.
....
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 5784 of
2002.

B From the Order and Judgment dated 7.2.2002 of the High Court of
Calcutta in C.O. No. 197/2002.

Deba Prasad Mukherjee, Adv., for the Appellant.

C S.K. Bhattacharya for Mrs. Sarla Chandra, Adv., for the respondents.

The Judgment of the Court was delivered by

B.P. SINGH, J. : This appeal, by special leave, is directed against the
D judgment and order of the High Court of Judicature at Calcutta in C.0. No.
197 of 2002 whereby the High Court while disposing of the revision
preferred by the appellant herein directed that the suit shall not proceed till
such time as the Will said to have been executed by Avarani Bose was not
probated.

E 2. The facts relevant for the disposal of this appeal as stated by the
appellant are as follows :-

2. l. Late A varani Bose was the owner of the suit property. The said
Avarani Bose executed a registered sale deed in her favour on 23.12.1994
F in respect of the suit property. The appellant resides in the first floor.

2.2. The said Avarani Bose filed Title Suit No. 10 of 1995 in the Court
of Civil Judge, (Sr. Division), 8th Court, Ali pore for declaration of title in
respect of the suit property and for recovery of possession and injunction
with respect to first floor of the suit property claiming that she had never
G sold the suit property to the appellant. The appellant, who was defendant No.
1 in the suit. controverted the allegations in the plaint and asserted that the
property was in fact sold to her by the said Avarani Bose on 23.12.1994,
and that sale deed was valid and binding on the vendor. The core issue in
the suit is whether the said Avarani Bose had sold the suit property by a valid
H registered sale deed executed on 23.12.1994 in favour of the appellant.
BINAPANI KAR CHOWDHURY v. S.S. BASU [B.P. SINGH, J.] 761

2.3. The said Avarani Bose died on 13.11.1997. An application was A
filed under Order XXII Rule 3 of the Code of Civil Procedure (for Short
CPC') by respondent No. 1 herein claiming substitution as the legal
representative of the deceased plaintiff on the basis ofa Will dated 16.5.1996
said to have been executed in his favour by Avarani Bose. He claimed to
be the executor and legatee under the said will. The Appellant admits that
B
the first respondent is in possession of a portion of the ground floor of the
suit property. (The first Respondent claimed that he was in possession in his
own right whereas the appellant claimed that he was the tenant of the ground
floor). None else sought to come on record as the Legal Representative of
Avarani Bose. Though, the appellant herein objected to the substitution of
respondent No. 1 as legal representative of deceased plaintiff, her objections c
were rejected and respondent No. 1 was brought on record as the legal
representative of Avarani Bose.

2.4. Though the recording of evidence in the suit has been completed,
the court has not proceeded to hear arguments and dispose of the suit, in view D
of the pendency of the probate proceeding, initiated by the first respondent
in regard to the will of Avarani Bose. As the matter was pending for long,
on 5.10.2001, the appellant filed an application under section 15lof CPC
before the trial court praying that the court may proceed with the hearing
and decide the suit. The appellant inter alia contended that first respondent E
herein was deliberately prolonging the probate proceedings, so as to keep
the suit against appellant pending as that enabled him to continue to reside
in the ground floor of the suit property without paying rents/damages for
occupation. The appellant also contended that she is old and is prevented
from enjoying the entire suit property as owner, in view of the pendency of
the suit. F

2.5. The appellant's prayer was rejected by the trial court by order dated
5.10.2001 on the ground that the suit cannot be disposed of till the probate
is granted. The appellant therefore moved the Calcutta High Court under
section 115 CPC by way of a revision petition. The said revision has been G
rejected by the High Court by its impugned order of February 7, 2002
holding that if a suit has been initiated by a testator, on his death, the
Executor of his will can get substituted, but the Executor must get probate
before final disposal of the suit. The said order is under challenge in this
appeal.
H
762 SUPREME COURT REPORTS [2006) SUPP. 2 S.C.R.

A 3. The first respondent though served has remained unrepre~ented.
The appellant in her application for early hearing has alleged that the
petition for probate filed by the first respondent has been dismissed for
default on 7.9.2005. The appellant has not, however, produced the order
dismissing the first respondent's petition for issuance of probate. The
learned counsel for appellant is also not able to state as to whether the said
B petition for probate has been restored thereafter. In the absence of any
material in that behalf, it is not possible for us to take note of the said
subsequent event.

4. Section 213 of the Indian Succession Act ("Act' for short) provides
c as to when the right of the executor or legatee is established. Sub-section
(I) thereof provides that no right as executor or legatee can be established
in any court unless a court of competent jurisdiction in India, has granted
probate of the Will under which the right is claimed (or has granted letters
of administration with the Will or with a copy of the Will annexed.) It is
not in dispute that the said Section applies in the case of Wills made by
D a Hindu who is a resident of Calcutta. The trial court and the High Court
have proceeded on the basis that having regard to section 213 of the Act,
the suit cannot be decided unless the executor of the Will produces the
probate. Section 213 clearly creates a bar to the establishment of any right
under a Will by the executor or legatee unless probate or letters of
administration of the Will have been obtained. This Court in Mrs. Hem
E
Nolini Judah v. Mrs. /solyne Sarojbashini Bose, AIR (!962) SC 1471, held
as follows :

"The words of S.213 are not restricted only to those cases where the
claim is made by a person directly claiming as a legatee. The section does
F not say that no person can claim as a legatee or as an executor unless he
obtains probate or letters of administration of the will under which he claims.
What it says is that no right as an executor or legatee can be established in
any C<?urt of Justice, unless probate or letters of administration have been
obtained of the will under which the right is claimed, and therefore, it is
G immaterial who wishes to establish the right as a legatee or an executor.
Whosoever wishes to establish that right whether it be a legatee or an
executor himself on somebody else who might find it necessary in order to
establish his right to establish the right of some legatee or executor from
whom he might have derived title. he cannot do so unless the will under
which the right as a legatee or executor is claimed has resulted in the grant of
H
BINAPANI KAR CHOWDHURY v. S.S. BASU [B.P. SINGH, J.] 763

a probate or letters of administration." A
5. Therefore, where the right of either an executor or a legatee under
a Will is in issue, such right can be established only where probate (where
an executor has been appointed under the Will) or letters of administration
(where no executor is appointed under a Will) have been granted by a
competent court. Section 213 does not come in the way of a suit or action
B
being instituted or presented by the executor or the legatee claiming under
a Will. Section 213, however, bars a decree or final order being made in such
suit or action which involves a, claim as an executor or a legatee, in the
absence of a Probate or Letters of Administration in regard to such a will.
Where the testator had himself filed a suit (seeking a declaration and c
consequential reliefs) and he dies during the pendency of the suit, the
executor or legatee under his will, can come on record as the legal
representative of the deceased plaintiff under Order 22 Rule 3 CPC and
prosecute the suit. Section 213 does not come in the way of an executor or
legatee being so substituted in place of the deceased plaintiff, even though
D
at the stage of such substitution, probate or letters of administration has not
been granted by a competent court.

6. However, there appears to be some divergence in views on the
question whether a decree can be passed in the absence of probate (or letters
of administration) where the suit or action has been initiated by the testator E
himself (and not by any one claiming a right as the executor or legatee under
a Will) and the Executor/Legatee subsequently comes on record as the legal
representative on the death of the testator. One view is that after the death
of the testator, when an executor or a legatee comes on record and proceeds
with the suit, he is trying to enforce his right under a Will and, therefore,
F
section 213 would come into play and the probate or letters of administration
will have to be obtained before the judgment is delivered (see Arijit Mullick
v. Corporation of Calcutta, (1979) 2 Cal. L.J. 426. The other view is that
Section 213 will not apply as the suit was not filed to establish any right of
an Executor or Legatee under a Will, and that as the testator himself having
filed the suit, the issue in the suit is only about the right claimed by the G
testator/plaintiff and not about the right claimed by the Executor/Legatee
under the Will (see Gobinda Bal/av Chakraborty v. Biswanath Mustafi,
AIR (1980) Cal.. 143. We do not propose to examine this question in this
appeal, as the respondent is unrepresented, and this appeal can be disposed
of on the special facts and circumstances of this case. H
764 SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A 7. The suit is of the year 1995 and the original plaintiff died in 1997.
The first Respondent came on record as Executor and Legatee of the original
plaintiff in pursuance of an order dated I0.8.1998. The evidence had been
concluded long ago. But till now the first respondent has not obtained the
probate of the Will. The appellant-defendant is stated to be 74 years old. The
said suit, wherein the validity of the sale deed executed in favour of the
B appellant by Avarani Bose is questioned, has been pending without a
decision for more than a decade. The first respondent has not even chosen
to appear in this appeal nor explained the delay in securing probate, thereby
lending credence to the claim of the appellant that the first respondent is
deliberately protracting the probate proceedings so that he can avoid a
c decision in this case and continue to be in possession of the ground floor.

8. Therefore, with a view to do complete justice between the parties,
it is appropriate to direct the trial court (Civil Judge, Senior Division,
Alipore), where T.S. No. 10/1995 is pending, to proceed to hear arguments
and deliver judgment in the suit. Nothing further will be required, if the suit
D
is to be dismissed. But ifthe suit is to be decreed, the trial court should make
it clear that the judgment and decree will come into effect only on the first
respondent obtaining and producing the probate of the will, and till then the
decree should be considered only as provisional and not to be given effect.
We dispose of this appeal accordingly making it clear that nothing stated
E above is an expression of any opinion on merits of the case.

K.K.T. Appeal disposed of.