An executor derives his title and authority from the will of the testator and not from any grant of probate. Even before the probate is obtained, an executor can institute action, but no decree can be passed in such an action until the probate is granted.

This Rule is at the instance of one of the executors of the deceased plaintiff who died during the pendency of the suit instituted by him and it is directed against order No. 24 dated June 19, 1978 of the Learned Judge, Seventh Bench, City Civil Court, Calcutta. By the said order, the Learned Judge dismissed the application of the petitioner praying for his substitution as the executor of the deceased plaintiff.

2. The case of the petitioner is that the deceased plaintiff died leaving a will and appointed the petitioner and another person as executors. The other person is not willing to act as executor and, accordingly, the petitioner filed an application for his substitution as executor in place of the deceased plaintiff. The Learned Judge took the view that as the will was not probated, the petitioner could not be substituted. He stayed all further proceedings of the suit till September 19, 1978 with liberty to the petitioner to apply for further extension of time, if necessary so as to enable him to obtain probate of the will.

3. In my opinion, the procedure that has been followed by the Learned Judge is erroneous as executor of the Will is the legal representative of the deceased for all purposes. It has been observed by the Privy Council in (1) S.M.K.R. Meyappa Chetty and S.N. Subramanian Chetty, 43 I.A. 113

"It is quite clear that an executor derives his title and authority from the Will of his testator and not from any grant of probate. The personal property of the testator, including all rights of action, vests in him upon the testator's death, and the consequence is that he can institute an action in the character of executor before he proves the Will. He cannot, it is true, obtain a decree before probate, but this is not because his title depends on probate, but because the production of probate is the only way in which, by the rules of the Court, he is allowed to prove his title".

4. It is clear from the above observation of their Lordships of the Judicial Committee that even before the probate is obtained, an executor can institute action but no decree can be passed in such an action so long as the probate is not granted. In the instant case, it is stated that a proceeding for grant of probate of the Will of the deceased plaintiff has been already instituted. In my opinion, it will not be right to stay all further proceeding of the suit till the disposal of the proceeding for probate as the Learned Judge has done. The proper course would be to substitute the petitioner in place of the deceased plaintiff and the other natural heirs of the deceased as pro forms defendants pending disposal of the probate proceeding. If the petitioner succeeds in having a grant of probate in the probate proceedings in that case, the names of the other natural heirs will be struck out and the suit will be finally disposed of in accordance with law.

5. In the circumstances, I set aside impugned order of the Learned Judge and direct him to substitute the petitioner and other natural heirs of the deceased plaintiff in the manner stated above. The Learned Judge will proceed with the injunction matter after the substitution is effected as mentioned above. The petitioner has to file an application before the Learned Munsif stating thereto the names and other particulars of the other heirs, if the same are not already on record.

This Rule is made absolute but there will be no order as to costs.