2006 Supreme(SC) 514

2006(4) Supreme 502
SUPREME COURT OF INDIA
(From Calcutta High Court)
B.P. Singh & R.V. Raveendran, JJ.
Binapani Kar Chowdhury—Appellant
versus
Sri Satyabrata Basu & Anr.—Respondents
Civil Appeal Nos. 5784 of 2002
Decided on 16-5-2006
Counsel for the Parties :
For the Appellant : Deba Prasad Mukherjee, Advocate.
For the Respondents : S.K. Bhattacharya for Mrs. Sarla Chandra, Advocate.

IMPORTANT POINT
Section 213 of Indian Succession Act does not come in the way of a suit or action being instituted or presented by the executor or legatee claiming under a Will.

Headnote:Indian Succession Act, 1925—Section 213—Where right of either an executor or a legatee under a Will was in issue, such right could be established only where probate or letters of administration was granted by competent court—Divergence in views on the question whether a decree could be passed in absence of probate where suit or action had been initiated by testator himself and Executor/Legatee subsequently came on record as legal representative on death of testator—Suit for declaration that no sale deed of suit property was executed in favour of appellant was filed in 1995—Original plaintiff died in 1997 and respondent got impleaded as legal representative as executor or legatee under the Will—Suit reached stage of final hearing but respondent had not yet obtained probate of the Will—Appellant-defendant was 74 year old—Respondent failed to appear in present appeal lending credence to claim of appellant that he was deliberately protracting probate proceedings and to continue to be in possession of ground floor of suit property without paying any damages—To do complete justice, trial Court to decide suit and if suit was decreed, it shall be effective only on 1st respondent obtaining the probate of Will.

       Held : Therefore, where the right of either an executor or a legatee under a Will is in issue, such right can be established only where probate (where an executor has been appointed under the Will) or letters of administration (where no executor is appointed under a Will) have been granted by a competent court. Section 213 does not come in the way of a suit or action being instituted or presented by the executor or the legatee claiming under a Will. Section 213, however, bars a decree or final order being made in such suit or action which involves a claim as an executor or a legatee, in the absence of a Probate or Letters of Administration in regard to such a will. Where the testator had himself filed a suit (seeking a declaration and consequential reliefs) and he dies during the pendency of the suit, the executor or legatee under his will, can come on record as the legal representative of the deceased plaintiff under Order 22 Rule 3 CPC and prosecute the suit. Section 213 does not come in the way of an executor or legatee being so substituted in place of the deceased plaintiff, even though at the stage of such substitution, probable or letters of administration has not been granted by a competent court. (Para 5)

       However, there appears to be some divergence in views on the question whether a decree can be passed in the absence of probate (or letters of administration) where the suit or action has been initiated by the testator himself (and not by any one claiming a right as the executor or legatee under a Will) and the Executor/Legatee subsequently comes on record as the legal representative on the death of the testator. One view is that after the death of the testator, when the executor or a legatee comes on record and proceeds with the suit, he is trying to enforce his right under a Will and, therefore, section 213 would come into play and the probate or letters of administration will have to be obtained before the judgment is delivered [see Arijit Mullick vs. Corporation of Calcutta -1979(2) Cal. L.J. 426]. The other view is that Section 213 will not apply as the suit was not filed to establish any right of an Executor or Legatee under a Will, and that as the testator himself having filed the suit, the issue in the suit in only about the right claimed by the testator/plaintiff and not about the right claimed by the Executor/Legatee under the Will [see Gobinda Ballav Chakraborty v. Biswanath Mustafi - AIR 1980 Cal. 143]. We do not propose to examine this question in this appeal, as the respondent in unrepresented, and this appeal can be disposed of on the special facts and circumstances of this case.(Para 6)

       The suit is of the year 1995 and the original plaintiff died in 1997. The first Respondent came on record as Executor and Legatee of the original plaintiff in pursuance of an order dated 10.8.1998. The evidence had been concluded long age. But till now the first respondent has not obtained the probate of the Will. The appellant-defendant is stated to be 74 years old. The said suit, wherein the validity of the sale deed executed in favour of the appellant by Avarani Bose is questioned, has been pending without a decision for more than a decade. The first respondent has not even chosen to appear in this appeal nor explained the delay in securing probate, thereby lending credence to the claim of the appellant that the first respondent is deliberately protracting the probate proceedings so that he can avoid a decision in this case and continue to be in possession of the ground floor.(Para 7)

       Therefore, with a view to do complete justice between the parties, it is appropriate to direct the trial court (Civil Judge, Senior Division, Alipore), where T.S. No.10/1995 is pending, to proceed to hear arguments and deliver judgment in the suit. Nothing further will be required, if the suit is to be dismissed. But if the suit is to be decreed, the trial court should make it clear that the judgment and decree will come into effect only on the first respondent obtaining and producing the probate of the will, and till then the decree should be considered only as provisional and not to be given effect. (Para 8)