B. N. Agrawal, J.

1. -this revision application has been filed by the petitioners for setting aside order dated 9-8-1983 passed by the learned Subordinate judge whereby he has rejected the petition filed on behalf of the petitioners for adding them as party-defendants upon the death of Most. Mantora Kuer, defendant No.1.

2. The plaintiff filed a suit for declaration that the decree passed in T. S. No.750 of 1970 was illegal, void and not binding upon the plaintiff The further relief sought for was that the deed of gift dated 23-6-1979 alleged to have been executed by father cf the plaintiff in favour of defendant No.1 was illegal, void and not binding on the plaintiff.

3. During the pendency of the suit, defendant No.1 died and after her death, the plaintiff and other defendants filed a compromise petition in the suit wherein the defendants accepted the claim of the plaintiff. The petitioners filed an application for adding them as party which application, in effect and substance, was an application for substitution. In the said application, it was stated that during her life time, defendant No.1 executed a will on 15-6-1982 in favour of the petitioners. The prayer made on behalf of the petitioners was objected by the plaintiff and defendants and the court below by the impugned order rejected the prayer on the ground that the petitioners had not obtained any probate; as such, they could not be impleaded as party in view of the provisions of Sec.213 of the Indian Succession Act, 1925 (hereinafter referred to as the Act ). Hence this revision application.

4. When this case was placed for admission before a learned single Judge on 26-8-1983, be directed the same to be placed for admission before a Division bench as correctness of the decision of a learned single Judge of this court in the case of Arjun Prasad and others V/s. Biteswar Singh (1982 B. B C. J. , 367) : 1982 BLJ 454 was doubted. Thereafter, the case was placed for admission before a Division Bench which admitted the same on 1-9-1983.

5. The sole point which fails for consideration in this revision application is as to whether a legatee under unprobated will can be implesded as party upon the death of testator or not, who was a party to the suit and section 213 of the Act debars a court front recognising and impleading a legatee under unprobaled will unless and until a probate or letters of admiristration has been obtained in respect of the will under which he claims. For deciding this question, it would be necessary to refer to the provisions of sections 211 end 213 of the Act, relevant portions of which are quoted hereunder:

"211. Character and property of executor or administrator as such (1) The executor or administrator, as the case may be, of a deceased person is his legal representative for all purposes, and all the property of the deceased person vests in him as such. "

"213. Right as executor or legatee when established- (1) No right as executor or legatee can be established in any Court of Justice, 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 an authenticated copy of the will annexed. " (Emphasis added)

It has to be seen whether the expression right as used in Sec.213 is wide enough to include a right to prosecute a suit or proceeding or is the expression right confined to the right to enforce a claim for which a suit or legal proceeding is brought. The language of Sec.213 (1) is very clear and it says that no right can be established in a court. Institution of a case is something different than establishment of a right. Sec.213, in my view, does not preclude a person freer; instituting a case or setting up a defence on the basis of unprobated will, but it only debars a person from enforcing the right claimed on the besis of unprobated will unless and until a probate or letters of administration is obtained. A