An executor of a Will is entitled to file a suit and application for eviction of tenants from the properties of the testator even before obtaining probate of the Will, but cannot recover the decree without producing the probate before the passing of the final decree.

( 1 ) THE Court: This is an application under Chapter 13a of the Original Side Rules. The plaintiff is the executor, heir, legal representative and a legatee of the last Will and testament of his father, late Sachindra Nath Mitra.

( 2 ) MR. Pratap Chatterjee, learned senior counsel, appears for the plaintiff. He submits that in the capacity of executor the plaintiff has filed the suit, and in the suit the present application has been filed under Chapter 13a. The suit has been filed for eviction of the defendants from the suit properties. The suit properties were properties of the testator. The plaintiff has applied for probate of the Will. Such application is pending. In the circumstances, on the basis of the ratio of the Division Bench decision of this Court in Prabhat Nath Das v. Ramendra Kumar Saha, ILR 61 1081, the present application may be adjourned for some time. At the present moment, in the absence of probate, the plaintiff will not be entitled to recover the decree, if one is passed in the Chapter 13a application, though he can lawfully file it.

( 3 ) MR. Dutt, learned senior counsel, appears for the defendants. He submits that in view of the Division Bench decision of this Court in Bibhuti Bhusan Roy and Anr. v. Narendra Narayan Ghosh and Ors. , AIR 1951 Cal 228 (DB), the suit is not maintainable. The suit and the application both are not maintainable, because without obtaining probate the plaintiff, qua executor of the Will of the testator (the owner of the suit properties), is not empowered or entitled to file the suit for eviction. The Will itself is a nullity, as life estate was sought to be given to the widow of the testator, though after 1956 the concept of life estate has lost its legal force. The daughters of the testator, who are co-owners of the properties, having not been made parties, the suit is hit by the provisions of order 1 Rule 9 of the Code of Civil Procedure, 1908. The heirs of the owner of the suit properties (including the present plaintiff) by their overt acts abandoned the lease whereunder the owner had let out the properties to the defendants. As Will appear from the rent receipts issued by the heirs, the tenancy was converted to a monthly one, to be governed by the West Bengal Premises Tenancy Act, 1956. It will now be governed by the West Bengal Premises Tenancy Act, 1997. In view of section 44 of this Act the present suit cannot be filed in this Court. All these questions require determination by trial. So there is no reason to adjourn this application to enable the plaintiff to obtain for proceeding with it. If the present application is kept pending, the defendants will suffer loss and prejudice, because during its pendency they are not entitled to file their written statement. Hence the application should be dismissed with costs.

( 4 ) AFTER hearing the learned counsel for the parties, I find that the first question that arises for decision is: whether the application should be adjourned to enable the plaintiff to obtain the probate.

( 5 ) MR. Chatterjee has relied on the decision in Prabhat Nath's case. I find from this decision that the Division Bench of this Court held as follows:. . . . . . . . THE grant of a probate is not a condition precedent to the institution of the suit by the executor. See Chandra Kishore Roy v. Prasanna Kumari Dasi (1 ). There cannot be any doubt that the appellant had right to institute the present suit as executor before he obtained the probate. Whether as executor he would be entitled to recover the decree or to maintain the same passed by the trial Court without producing the probate is an entirely different matter. It is well established on authorities that he will be entitled to get a decree, if he produces the probate before the passing of the final decree. . . . .

( 6 ) I find from the decision in Prbhat Nath's case that to enable the plaintiff there to obtain the probate, and then to invite the Court to consider the question o