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High Court Of Calcutta
G. N. Ray
GOBINDA BALLAV CHAKRABORTY - Appellant
Versus
BISWANATH MUSTAFI - Respondent
AFAD 60 Of 1976
Decided On : 08/17/1979
EXECUTION OF DECREE - NULLITY - EXECUTOR - SUBSTITUTION - INDIAN SUCCESSION ACT, 1925 - SECTIONS 213, 227 - CODE OF CIVIL PROCEDURE, 1908 - SECTIONS 2(11), 22, 47 - WHETHER DECREE PASSED IN FAVOUR OF EXECUTORS BEFORE GRANT OF PROBATE IS A NULLITY - WHETHER EXECUTORS CAN BE SUBSTITUTED AS LEGAL REPRESENTATIVES OF DECEASED PLAINTIFF BEFORE GRANT OF PROBATE - WHETHER EXECUTION PROCEEDING MAINTAINABLE.
Fact of the Case:
A suit was instituted by Bina Pani Debi against the judgment-debtor. During the pendency of the suit, Bina Pani died and the appellants, Suhasis Chandra Haldar and Gobinda Ballav Chakraborty, made an application for being substituted as legal representatives of the deceased plaintiff on the allegation that she had left a will by which they were made executors to her estate. The application was allowed and they were substituted as plaintiffs. The will was probated after the passing of the decree in the suit. The judgment-debtor objected to the execution of the decree on the ground that it was a nullity as the executors could not represent the estate without probate. The Munsiff dismissed the objection, but the Additional District Judge allowed the appeal and held that the decree was a nullity.
Finding of the Court:
The court held that the decree was not a nullity. The suit was instituted by the testator herself and the executors were substituted as her legal representatives. The executors were in possession of the property of the testator by virtue of the will and were entitled to be substituted as representatives of the deceased plaintiff. The decree passed in favour of such legal representatives of the original plaintiff cannot be held to be a nullity.
Issues: 1. Whether the decree passed in favour of the executors before the grant of probate is a nullity? 2. Whether the executors can be substituted as legal representatives of the deceased plaintiff before the grant of probate? 3. Whether the execution proceeding is maintainable?
Ratio Decidendi: 1. Section 213 of the Indian Succession Act, 1925 debars the court to pass any decree in favour of any person claiming to be an executor when there is no certificate of the grant of probate of the will in question. However, in the instant case, the suit was not instituted by the executors for establishing their right as executors to the estate of the deceased but the suit was instituted by the testator herself on a cause of action available to her and the executors being in possession of the property of the testator by virtue of the said will were legal representatives within the meaning of Section 2 (11) of the Code of Civil Procedure, 1908 and although the will was not probated, they were entitled to be substituted and as a matter of fact were substituted as representatives of the deceased plaintiff and the decree passed in favour of such legal representatives of the original plaintiff cannot be held to be a nullity. 2. Section 227 of the Indian Succession Act, 1925 lays down the effect of granting probate to a Will and it is provided that when a probate of a will is granted all intermediate acts of the executor from the date of death of the testator are rendered valid by the grant of probate. 3. Section 47 of the Code of Civil Procedure, 1908 empowers the court to determine as to who is the legal representative of the deceased. When a question arises, the Court's order, though it turns out to be erroneous, would operate and confer jurisdiction upon the Court to continue the proceeding with the legal representative as found by it on the record to represent the estate of the deceased.
Final Decision: The appeal was allowed and the impugned judgment dated 25th of March 1976 passed by the learned Additional District Judge, 2nd Court, Alipore, was set aside and order No. 35, dated 31st of March, 1975 passed by the learned Munsiff, 1st Court at Sealdah was affirmed.
( 1 ) APPEAL against the Order of Sri S. K. Mukherjee, Additional District Judge of Second Court at Alipore in Misc. Appeal No. 262 of 1975, dated the 25th day of March 1976, reversing the order of Sri H. Banerjee, Munsiff, First Court at Sealdah, dated the 31st day of March, 1975.
( 2 ) THIS appeal arises out of the judgment dated 25th of March, 1976, passed by the learned Additional District Judge, Second Court, Alipore, in Misc. Appeal No. 262 of 1975, reversing the Judgment and order being Order No. 35 dated 31st of March, 1975, passed by the learned Munsif, First Court, Sealdah, in Misc. Case No. 217 of 1974.
( 3 ) IT appears that Title Suit No. 208 of 1966, of the 1st Court of the learned Munsif at Sealdah was decreed and the said decree was put to execution. In the said execution proceeding, an objection under Section 47 of the Code of Civil Procedure was made by the judgment-debtor respondent Biswanath Mustafi inter alia contending that the decree passed in the said Title Suit was a nullity and as such the decree was not executable. It appears that the said suit was initially instituted by one Bina Pani Debi against the said judgment-debtor. During the pendency of the said suit the said Bina Pani died and the appellants Suhasis Chandra Haldar and Gobinda Ballav Chakraborty made an application for being substituted as legal representatives of the said deceased plaintiff in the said suit on the allegation that the said plaintiff had died and she had also left a will by which the said Sri Suhasis Chandra Haldar and Gobinda Ballav Chakraborty were made executors to the estate of the said deceased Bina Pani Debi. It appears that the learned Subordinate Judge allowed the said application for substitution and the said Sri Haldar and Sri Chakraborty were substituted as plaintiffs in place of the original plaintiff Bina Pani Debi, since deceased. It is an admitted position that during the pendency of the said suit the said will of Bina Pani Debi was not probated and after the passing of the decree in the said Title Suit No. 208 of 1966, the will was probated on contest and the said Sri Suhasis Chandra Haldar and Sri Gobinda Ballav Chakraborty were adjudged as executors to the said will. It was contended before the learned munsif that so long the will was not probated the said Sri Suhasis Chandra Haldar and Sri Gobinda Ballav Chakraborty could not have been impleaded as executors to the will of the deceased Bina Pani Debi and as such, they had not the capacity to represent the estate of the said Bina Pani Debi. Accordingly, the decree passed in their favour on the footing that they were the legal representatives of the original plaintiff Bina Pani Debi was illegal and consequently the execution in terms of the said decree was not maintainable. It appears that the learned Munsif was of the view that the decree in question was not a nullity and accordingly the said Misc. case was dismissed by the learned Munsif. The judgment-debtor, thereafter, preferred an appeal being Misc. Appeal No. 262 of 1975 of the Second Court of the learned Additional District Judge, Alipore but it appears that the learned Additional District Judge allowed the said appeal and held that an executor could not represent the estate in a suit or proceeding until probate has been obtained by him and although institution of a suit ipso facto may not be illegal but if before passing of the decree, the will is not probated then under Section 213 of the Indian Succession Act, an executor is not competent to obtain a decree in any suit brought by him as executor. Accordingly, the decree passed in the suit in question was a nullity and the execution proceeding was not maintainable. Being aggrieved by the said adjudication made by the learned Additional District Judge the decree-holders have preferred the instant appeal.
( 4 ) MR. Roy Choudhury the learned Counsel appearing for the appellant contended that the suit in question was instituted by Bina
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