ASHOKE MUKHARJEE AND ANR. Vs. MUSHA KHAN

JUDGEMENT

(1.) This revisional application raises a short point as to whether an executor named in the will executed and registered by the deceased plaintiff can be brought on the record on substitution on the death of the plaintiff even before the probate is obtained.

(2.) Facts are not in dispute. Late Chhayarani Mukherji instituted a suit for eviction as against the tenant/opposite party. Pending the suit she died on April 19, 1983, and on her death, the two executors appointed as such by the deceased plaintiff in will executed and registered by her before her death, made an application for being substituted in place and instead of the deceased plaintiff. The learned Munsif refused to entertain this application on the ground that such an application cannot be considered before probate has been obtained in respect of the will. He, therefore, by the order dated Nov. 6, 1984 deferred consideration of the said application till after filing of the probate. Feeling aggrieved, the applicants have moved the present revisional application.

(3.) In such circumstances, the only point as referred to herein before arises for consideration. Sec. 213(1) of the Indian Succession Act, 1925, which corresponds to Sec. 187 of the 1965 Act, no doubt lays down specifically that "No right as executor or legatee can be established in any court of justice, unless a court of competent jurisdiction in India has granted probate of the will under which the right is claimed or has granted letters of administration with the will or with an authenticated copy of the will annexed". This section has been interpreted to create a bar to the establishment of any right under the will by an executor or a legatee unless probate or letters of administration of the will then obtained. In Hem Nalini Vs. Isolyne Sarojbashini, AIR 1962 SC 1472 but it is one thing to establish any right which is different from taking any step towards the establishment of such a right. Instituting a suit or getting oneself substituted in place of the deceased testator may be a step in said towards the establishment of a right under the ; will but the same clearly distinct from the establishment of the right itself. Preponderance of this view following the decision of the Privy Council in the case of S. M. K. R. Meyappa Chetti Vs. Subramaniam Chetti, 43 Indian Appeals 113 is that the aforesaid statutory bar incorporated in the Indian Succession Act, does not bar institution of a suit or getting the executor substituted in a pending suit. The oft quoted passage from the aforesaid decision of the Judicial Committee is worthy of repetition. It was observed : "It is quite clear that an executor derives his title and authority from the will of his testator and not from any grant of probate. The personal property of the testator, including all rights of action, vests in him upon the testators death and the consequence is that he can institute an action in the character of executor before he proves the will. He cannot it is true, obtain a decree before probate, but this is not because his title depends on probate but because the production of probate is the only way in which, by the rules of the court he is allowed to prove his title". The Judicial Committee therefore, expressly laid down that an executor can institute an action even before probate has been obtained though before the decree is actually passed such executor is to prove his title by proving the probate. A Division Bench of this Court in the case of Gopal Lal Chandra Vs. Amulya Kumar Sur, AIR 1933 Calcutta 234 followed the same principle when it was observed "It is true that, if an executor institutes a suit in anticipation of probate and subsequently obtains probate, the requirement of Sec. 187 Succession Act (obviously referring to the old Act) are satisfied for the purpose of a decree to be obtained." That appears to be the consistent view taken by this Court in other cases too and last in the series is the decision of Murari Mohan Dutt. J, in the case of Arijit Mullick Vs. Corporation of Calcutta, 1979(2) C.L.J. 426 with which I am in respectful agreement. A Bench decision in the case of Bibhuti Bhusan Roy and another Vs. Narendra Narayan Ghosh and others, 54 CWN 667 was relied upon in support of a contrary contention but in my opinion the said decision is clearly distinguishable since therein no point now under consideration did arise for consideration there, the issue raised was as to whether sale held in respect of a property of a deceased testator in the absence of the executor before the probate of the will had been obtained was a valid sale when there was substantial representation of the estate of the deceased. This Court held that in the absence of the probate since the executor could not represent the estate or contest the sale such a sale cannot be held to be invalid in law. The point thereunder consideration, therefore, was totally distinct and different from the point now under consideration by me.