An executor cannot represent the estate in a suit or proceeding till probate has been actually obtained by him.

Lahiri, J. :- These two appeals are at the instance of the plaintiffs. Appeal from Appellate Decree No. 1356 of 1944 arises out of Title Suit No. 95 of 1942 in which the plaintiffs ask for a declaration of their title to the disputed land and for confirmation of their possession; and they also ask for an injunction restraining defendants 1 to 4 from proceeding with a certain mutation case instituted under the Land Registration Act. Appeal from Appellate Decree No. 1357 of 1944 arises out of Title Suit No. 88 of 1942 in which the plaintiffs pray for a declaration that defendants 5 and 6 are tenants under them in respect of kha schedule land of the plaint and ask for an injunction restraining defendants 1 to 4 from withdrawing the money which had been deposited by defendants 5 and 6 under the provisions of S. 149, Bengal Tenancy Act.

2. The facts which are material for the purpose of these two appeals are these: One Nripendra Bala had a moiety share in Touzi No. 192 of the 24-Parganas Collectorate. Defendants 1 to 4 instituted a suit, viz. No. 328 of 1937 against Nripendra Bala and obtained a decree on 2-8-1938. Before the decree, however, Nripendra Bala died living a will by which she bequeathed the disputed property to her daughter Saraswati and appointed her son Durga Charan as the executor. During the pendency of the suit, Nripendra Balas pleader was requested to supply the names of the heirs of Nripendra Bala, and the pleader supplied the name of Durga Charan as the heir. Thereafter Durga Charan was substituted in the place of Nripendra Bala, not as an executor to Nripendra Balas will, but in his personal capacity as heir. Durga Charan accepted the written statement filed by his mother on 29-4-1938 and eventually the suit was decreed, as already stated, on 2-8-1938. In execution of this decree, the disputed property was sold on 15-6-1939, and the sale was confirmed on 17-7-1939. It further appears that on 26-8-1938 there was an order for probate being granted in favour of Durga Charan of Nripendra Balas will. On 13-9-1939 the probate was actually issued by the Probate Court to Durga Charan on payment of the deficit probate duty.

3. It also appears that the plaintiffs of the present suits brought a money suit against Nripendra Bala which was registered as money Suit No. 37 of 1936. In this suit, on Nripendra Balas death, her son Durga Charan was impleaded as executor, and the legatee Saraswati, was also impleaded as a legatee under the will. In execution of the decree obtained by the plaintiffs in Suit No. 37 of 1936 the plaintiffs purchased the same property on 9-10-1939.

4. The question which has arisen in these two suits is which of these two sales will prevail. If the sale at which defendants 1 to 4 purchased be a valid sale, the plaintiffs claim in the two suits is liable to be dismissed; both the Courts below have taken that view and have dismissed the plaintiffs suits; and against the decisions of the Courts below, the plaintiffs have preferred the present second appeals.

5. On behalf of the appellants, Mr. Bose has argued that having regard to the fact that in the defendants suit there was no valid order for substitution of the legal representatives of Nripendra Bala and having regard to the further fact that shortly before the sale in execution of the decree obtained by defendants 1 to 4, one of the said defendants had come to know about the will left by Nripendra Bala, the sale at which the defendants purchased must be held to be invalid, at any rate it did not pass title of the legatee Saraswati to defendants 1 to 4. In support of this contention, Mr. Bose has relied upon the decision of the Judicial Committee in Khiaraj Mal v. Daim, 32 i. a. 23: (32 Cal. 296 P. C. ) where it was observed at page 33 that the Court had no jurisdiction to sell the property of persons who were not parties to the proceeding or properly represented on the record, and Mr. Bose has relied upon another passage at page 36 where their