MANOJ KARAM Vs. RAM TULJIRAM SHAHANI

JUDGEMENT

(1.) The appeal arises from a judgment of a Learned Single Judge dated 21 June 2013, which has been rendered in a Chamber Summons which was taken out by the Appellant for being brought on the record in execution proceedings arising out of a consent decree, in his capacity as an executor of a will alleged to have been executed by the original Third Defendant. The Third Defendant died and the Appellant has instituted proceedings for probate which are pending. The Learned Single Judge dismissed the Chamber Summons on the ground that unless the rights of the Appellant as sole executor are 'finalised' or decided by the Court upon the grant of probate, it was not open to the Appellant to seek to be joined in the execution proceedings.

(2.) In a partition suit of 1989, Consent Terms were arrived at on 7 February 2008. The suit was decreed in terms of the Consent Terms. Clause (1) of the Consent Terms related to a flat in a building called Shyam Nivas. The Consent Terms envisaged that the flat would be sold and the original Plaintiff and the seven defendants would each obtain a one eighth share in the sale proceeds, after deducting the expenses of the sale. The Third Defendant is alleged to have executed a testamentary disposition on 10 January 2006. The Third Defendant died on 19 December 2009. The Appellant claims to be the sole executor under the will of the Third Defendant. On 7 January 2011, an execution proceeding was filed Execution Application 210 of 2011 for seeking the execution of the Consent Terms in relation to the flat at Shyam Nivas. The Appellant filed a Chamber Summons on 11 July 2012 seeking to be impleaded as a party to the execution proceedings on the ground that he has been named as the sole executor in the will of the Third Defendant and was hence, entitled to represent the estate. The Chamber Summons has been dismissed by the Learned Single Judge by the impugned order.

(3.) Counsel appearing on behalf of the Appellant submits that (i) There is a distinction between the provisions of Section 211 and Section 213 of the Indian Succession Act, 1925. Section 213 provides that no right as executor or legatee can be established unless a Court of competent jurisdiction has granted probate of the will under which the right is claimed. Section 213, however, does not preclude the executor from setting up a claim or asserting an entitlement to represent the estate of the deceased; (ii) The Appellant as sole executor falls within the meaning of the expression "legal representative" in Section 2(11) of the Code of Civil Procedure, 1908 and since any proceedings could have been taken or an application could have been made against the Third Defendant, such a proceeding or application can be made by or against any person claiming under him by virtue of Section 146; (iii) The Learned Single Judge has ignored the decisions which were cited before the Court; and (iv) The judgment of the Learned Single Judge proceeded on the basis that the Appellant should not be allowed to obstruct the execution proceedings. The basis is erroneous, but in any event, it is clarified that the Appellant has no intent to delay the sale since under the consent terms each party is entitled to a one eighth share and directions have already been issued for a deposit of the deceased's one eighth share in Court.