The executor of a will becomes the legal representative and can represent the estate without needing probate, affirming the distinction between rights conferred and probate necessity.

1. This application under Article 227 of the Constitution of India has been filed challenging the order dated 6th March, 2020 passed by the learned Civil Judge, Senior Division, 2^nd Court, Barasat in Title Suit No.669 of 2017 allowing the application filed by the Defendant No.2 for substitution.

2. The case of the petitioner is that a suit for declaration of title and permanent injunction and accounts was filed by the mother of the present petitioner and respondent in respect of the three storeyed building in Plot No.1, Block-DB, Sector-I, Salt Lake City, District 24-Parganas (North).

3. The prayers of the said suit were for declaration of joint ownership to the extent of ‰ + 1/3 in respect of the suit property along with the permanent injunction from creating any disturbance in peaceful joint and ejmal possession of the suit property and also to render accounts of the rentals/licence fee collected by the petitioner herein from the 1st floor tenant.

4. The present petitioner entered appearance and filed the written statement after receiving summons of the said suit and after denying all the material allegations in the plaint filed a counter Claim with the prayer for decree of declaration of undivided 1/2 share in respect of the suit property after getting the grant of probate from the 3^rd Additional District Judge, Barasat.

5. During the pendency of the suit, the plaintiff, that is mother of the parties died on 6^th October, 2018. After that, the respondent/proforma defendant filed an application for substitution stating that the sole plaintiff, that is Dr. Urmila Ray bequeathed all her movable and immovable property in favour of the opposite party/proforma defendant by virtue of a Will dated 22^nd May, 2017, whereby the present petitioner has been appointed as an executor thereof. He accordingly, prayed to be transposed in place of deceased plaintiff by way of substitution. The petitioner filed the written objection to the extent that according to the Hindu Succession Act, after demise of the deceased plaintiff the right, title and interest would devolve upon her legal heirs and both the defendants are equally entitled to the subject-matter of the suit.

6. The petitioner also filed an application on 7^th December, 2018, under Order 22 Rule 3 of the Code of Civil Procedure for transposition of plaintiff from defendant and prayed for substitution as well as transposition as plaintiff from defendant side. That application was also contested by the opposite party/proforma defendant by filing written objection before the learned court and after hearing the parties the learned court rejected the application filed by the present petitioner on 7^th December, 2018 and allowed the application dated 10^th October, 2018, filed by the respondent/proforma defendant herein.

7. Mr. Mitra, the learned senior counsel appearing on behalf of the petitioner submits that the order of challenge in this revisional application is the application for substitution as filed by defendant No.2 which has been allowed on contest. It is submitted that the application specifically reflects about substitution in place of the plaintiff mother when both the parties are the legal heirs of the said deceased mother and are entitled to be transposed in the category of the plaintiff. It is further argued that the learned court erred in arriving at the opinion that in terms of Section 211 (1) of Indian Succession Act Defendant No.2 being the executor of the deceased plaintiff for all purposes and thereby allowed the prayer of the defendant No.2 when the application was absolutely silent in this regard. Further argument advanced on