An executor derives legal authority from a Will upon the testator's death, allowing a substituted plaintiff with vested interests under the Will to pursue litigation, regardless of the pending probate.

JUDGMENT :

MURAHARI SRI RAMAN, J.

THE CHALLENGE :

Questioning the propriety of order dated 14.12.2022 of the Senior Civil Judge, Bhubaneswar in suit, bearing CS No.1601 of 2020, passed in consideration of a petition filed at the behest of the petitioner-defendant under Order XXII, Rule 3, of the Code of Civil Procedure, 1908 (“CPC”, for short), this civil revision petition has been preferred invoking provisions of Section 115 with the following prayer(s):

“Therefore, it is prayed that the revision may be admitted, LCR may be called for and after hearing the parties, the same may be allowed by setting aside the impugned order dated 14.12.2022;

And for which act of kindness, the petitioner shall as in duty bound, ever pray.”

THE FACTS

2. The facts as outlined by the petitioner-defendant in the revision petition reveal that the original plaintiff-Sarojini Mohapatra (be called “deceased plaintiff” for convenience), being dead during the pendency of the suit for declaration of registered gift deed dated 24.11.2017 executed in favour of the petitioner (one of her sons) null and void and for permanent injunction, a petition under Order XXII, Rule 3 of the CPC came to be filed by her daughter-in-law (namely, Rukmani Mohapatra) for substitution in place of the deceased plaintiff-Sarojini Mohapatra (hereinafter called “substituted plaintiff”) claiming her right under a Will to continue with the aforenoted suit to its logical end.

2.1. The petitioner herein, being defendant in the suit, stated to have objected to such substitution and raised question of maintainability of the petition under Order XXII, Rule 3 of the CPC on the plea that deceased plaintiff left legal heirs behind her, who did not choose to participate in the suit and contest. It is the contention of the petitioner that Rukmani Mohapatra (substituted plaintiff) being not a successor of the deceased plaintiff, the petition under Order XXII, Rule 3 of the CPC is not liable to be allowed inasmuch as no legal right by dint of Will flows unless a Court of competent jurisdiction grants probate of such Will under which the right is claimed, or the legatee is granted the letters of administration with the Will or with a copy of an authenticated copy of the Will annexed thereto in terms of Section 213 of the Indian Succession Act, 1925.

HEARING OF THE CIVIL REVISION

3. As no factual dispute arose but for involvement of question of law, whether in absence of probate of Will, taking aid of such Will can any right to sue by Rukmuni Mohapatra survives substituting her mother-in-law (deceased plaintiff) in the suit, on consent of the counsel for the parties, the matter is taken up for final hearing.

3.1. Heard Sri Gopinath Mishra, learned Advocate along with Ms. Pragnya Paramita Mohanty, learned Advocate appearing for the petitioner-defendant and Ms. Soumya Priyadarshinee, learned Advocate on behalf of Sri Suvashish Pattanaik, learned Advocate along with Sri Bishal Baivab, learned Advocate appearing for the opposite party.

3.2. Hearing being concluded on 10.09.2024, the matter is kept reserved for preparation of Judgment and delivery thereof.

ARGUMENTS OF COUNSEL FOR THE RESPECTIVE PARTIES

4. Sri Gopinath Mishra, learned Advocate along with Ms. Pragnya Paramita Mohanty, learned Advocate appearing for the petitioner-defendant submitted that the Will alleged to have been executed in favour of the opposite party-substituted plaintiff having not been probated nor do the letters of administration being allowed, no legal right flows automatically stemming on the Will to pursue the suit by stepping into the shoes of the deceased plaintiff. Placing relianc