The main legal point established in the judgment is the interpretation of Section 211 of the Indian Succession Act, 1925, which emphasizes the legal representative's entitlement to continue the appeal and the requirement of probate or letter of administration for claiming independent rights over the property covered under the Will.

JUDGMENT :

Krushna Ram Mohapatra, J. - This is an application under Order 22 Rules 3, 10 and 11 of CPC filed by one Ramakanta Mohanty, son of Adaita Charan Mohanty praying, inter alia, to be substituted in place of deceased appellant, namely, Promodini Pattnaik.

2. The petitioner inter alia contended that the sole appellant, namely, Pramodini Pattnaik died on 05.05.2013. Before her death, she had executed a registered Will on 24.10.2005 in favour of the petitioner (Ramakanta) as executor of the Will. Thus, he is the legal representative of the deceased appellant and right to sue and to be sued survives with him. He is entitled to continue the appeal. Accordingly, he seeks leave of this Court to be substituted in place of sole deceased appellant and to prosecute the appeal.

3. Respondents 1 and 2 filed two separate counter affidavits objecting prayer of the petitioner.

Respondent No. 1 in his counter affidavit challenged the genuineness of the Will on various grounds. He further stated that respondent No. 2 is the adopted son of the sole deceased appellant and has no conflicting interest with that of the appellant. Thus, it is highly improbable to believe that the deceased appellant has executed the Will in favour of petitioner-Ramakanta Mohanty, who is none other than the brother of respondent No. 2. He further submitted that the proceeding for probate of the Will being pending before the competent court of law, the prayer of the petitioner should not be entertained. Thus, he prayed for dismissal of the petition.

Respondent No. 2, in his counter affidavit, denied the contentions raised in the petition. It is contented inter alia that the petition filed by Ramakanta Mohanty is not maintainable. Respondent No. 2 has also filed an application to transpose as appellant to prosecute the appeal as he is the only legal heir of the deceased appellant and has no conflicting interest with that of the appellant. Though he admitted the date of death of the sole appellant, but strongly refuted the Will alleging it to be a forged one. He also submitted that no right will accrue in favour of said Ramakanta Mohanty unless the Will is probated by competent court of law. Thus, he prayed for dismissal of the petition.

4. Respondent No. 2 had, in fact, filed an application as Misc. Case No. 45 of 2014 to be transposed as appellant. Subsequently, when the matter was taken up on 30.11.2015, he did not press the application and accordingly Misc. Case No. 45 of 2014 was dismissed as not pressed.

5. Mr. A.R. Dash, learned counsel for the appellant referring to the provisions of Section 211 of the Indian Succession Act, 1925 (for short, 'the Act') submitted that Ramakanta Mohanty being the executor of the registered Will dated 24.10.2005 executed by the sole deceased appellant, is her legal representative for all purposes and is entitled to continue this appeal as right to sue survives with him. He further submitted that respondent No. 2, who is the adopted son of the deceased appellant, does not press this application to be transposed as appellant. Thus, it is essential for the petitioner to be substituted in place of the deceased appellant to keep litigation alive and continue the appeal.

6. Mr. N.C. Pati, learned counsel for respondent No. 1, on the other hand refuting the contentions raised by Mr. Dash submitted that Section 211 of the Act should not be read in isolation. A conjoint reading of Sections 211 and 213 of the Act makes it abundantly clear that no right of an executor or a legatee can be established in any court of justice unless the Court of competent jurisdiction grants a probate or a letter of administration of the Will executed by the deceased appellant. The Will in question being suspicious in nature no right can accrue to the petitioner (the executor) unless probate is granted. In fact, a probate proceeding in respect of the Will in question is pending before the competent Court of law. Thus, the appeal should stand abated till probate of