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High Court Of Calcutta
J. K. BISWAS
ANJALI MULLICK - Appellant
Versus
MRITYUNJOY DEY - Respondent
G. A. 1881 Of 2002
Decided On : 01/07/2004
SATYENDRA NATH BORAL V. ANJALI MULLICK - INDIAN SUCCESSION ACT, 1925 - SECTION 211, 213 - EXECUTOR'S RIGHT TO REPRESENT DECEASED TESTATOR IN PENDING SUIT - APPLICANT, EXECUTOR OF DECEASED DEFENDANT'S WILL, ENTITLED TO BE ADDED AS PARTY TO PENDING PARTITION SUIT - SECTION 213 BAR ON ESTABLISHING RIGHT UNDER WILL NOT APPLICABLE - EXECUTOR ACTING AS LEGAL REPRESENTATIVE, NOT CLAIMING RIGHT UNDER WILL.
Fact of the Case:
Applicant, as the sole executor of the last Will and testament of deceased defendant 4, sought to be added as a party defendant in a pending partition and administration suit, claiming that deceased defendant 4 had a share in the suit properties. The plaintiff and other defendants opposed the application, arguing that deceased defendant 4 had no right, title, or interest in the properties due to a Will executed by her mother, and that the applicant, as a stranger to the joint estate, was not entitled to be added.
Finding of the Court:
The court held that the applicant was entitled to be added as a party to the pending partition suit as the legal representative of the deceased defendant 4. The court reasoned that the applicant, as the executor of the deceased defendant's Will, was required to protect her interest in the suit properties, and that the plaintiff was under an obligation to take steps for substitution. The court also held that section 213 of the Indian Succession Act, 1925, which prohibits an executor from establishing any right claimed under a Will without probate, did not apply in this case as the applicant was not seeking to establish any right under the Will, but rather to represent the deceased defendant's interest in the properties.
Issues: 1. Whether the applicant, as the executor of deceased defendant 4's Will, was entitled to be added as a party to the pending partition suit. 2. Whether section 213 of the Indian Succession Act, 1925, barred the applicant from being added as a party to the suit.
Ratio Decidendi: 1. An executor is the legal representative of a deceased person for all purposes, and derives his title from the Will, not from the probate. 2. Section 213(1) of the Indian Succession Act, 1925, prohibits an executor from establishing any right claimed under a Will without probate, but does not prohibit the executor from acting as the legal representative of the deceased person in any case or proceeding pending in any Court.
Final Decision: The application was allowed, and the applicant was ordered to be added to the suit by way of substitution for deceased defendant 4.
( 1 ) THIS application (G. A. No. 1881 of 2002) dated May 3rd, 2002 has been taken out by one Satyendra Nath Boral (hereinafter referred to as 'the applicant' ). It has been filed in the Partition and Administration Suit (No. 706 of 1979) pending in this Court. The applicant prays for his addition in the suit as a party defendant. He makes an alternative prayer for leave to intervene in the pending suit.
( 2 ) THE facts relevant for the purpose of disposal of this application are these. One Anjali Mullick as plaintiff filed the partition and administration suit in this Court in the year 1979. Seven persons were impleaded as defendants in it. In paragraph 19 (nineteen) of the plaint the plaintiff stated about the share of defendant 4 (Sm. Biva Boral) in the suit properties. On February 24th, 1980 defendant 4 filed her written statement. On August 31st 1991 defendant 4 executed and registered her Will. Applicant was appointed the sole executor. On December 5th, 1998 defendant 4 died. In 1999 the applicant filed an application (P. L. A. No. 97 of 1999) before this Court for grant of probate. On receipt of citation issued in such probate proceeding the plaintiff and some of the defendants of this suit lodged their caveats with supporting affidavits. The application was regarded as a contentious cause, and renumbered as Testamentary Suit No. 8 of 2000; it is pending decision. By letter dated July 5th, 2001 the applicant requested the plaintiff to take steps to substitute him in the suit for deceased defendant 4. By letter dated July 17th, 2001 the plaintiff informed her unwillingness to substitute the applicant on the ground that he is a rank outsider. In the circumstances the applicant has filed the present application for his addition in the suit as a party defendant.
( 3 ) THE case of the applicant is that as the duly appointed executor of the last Will and testament of defendant 4 he is entitled to be added in the suit to represent the deceased defendant 4 and protect her interest in the suit properties.
( 4 ) THE plaintiff is contesting this application by filing her opposition dated July 16th, 2003. Her case is this. In 1947 the plaintiff's grandfather Rasiklal Dey died; he was survived by his widow (Sm. Rakhaldasi), son (Biswanath Dey) and daughter (Sm. Biva Boral: defendant No. 4, since deceased ). In 1965 the plaintiff's father Biswanath died intestate; in 1970 her mother also died intestate. The plaintiff's parents were survived by the plaintiff and her two sisters and one brother. In 1978 the plaintiff's grandmother (Sm. Rakhaldasi) died testate; her last Will and testament is dated April 18th, 1978. In her Will the plaintiff's grandmother Rakhaldasi appointed the plaintiff's brother Mrityunjoy Dey as the sole executor. In the year 2003 Mrityunjoy filed an application (Probate Case No. 11 of 2003) for probate of the last Will and testament of his grandmother Rakhaldasi. Such application for probate filed by Mrityunjoy is pending in the City Civil Court at Calcutta. From the Will executed by Rakhaldasi (the grandmother of the plaintiff and mother of deceased defendant 4: Biva Boral) it reveals that nothing was bequeathed to deceased defendant 4 by her mother; and hence in the joint estate which is the subject matter of the pending partition and administration suit defendant 4 had no right, title, interest or share. Deceased defendant 4 would have derived interest, if any, in the joint properties, only from her mother Rakhaldasi, but she gave her nothing. This being the factual position the applicant has no right to be added in the pending suit, as he is none but a stranger to the joint estate.
( 5 ) DEFENDANT 1 (the brother of the plaintiff) is also contesting this application by filing opposition dated July 23rd, 2003. His case is this. His grandfather Rasiklal having died prior to the year 1956, his widow Sm. Rakhaldasi and daughter Sm. Biva Boral (deceased defendant 4) did not inherit anything fro
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