RAVINDRA KUMAR CHATURVEDI Vs. BOARD OF REVENUE

JUDGEMENT

(1.) THIS writ application is directed against an order dated 6.4.95 passed by the Member, Board of Revenue.

(2.) THE writ petitioner was making a claim for being substituted under Order 22 Rule 3 read with Section 151 CPC on the death of his maternal grant mother Smt. Jabitri Devi, who expired on 13.11.1984 at Jaipur. He claimed that by virtue of the registered will left behind by her, he is the sole legal representative of the deceased who should be brought on record and his application may be allowed. It was contested by the non applicant respondent that if the writ petitioner Ravindra Kumar Chaturvedi wanted to become a legal heir of the deceased Smt. Jabitri Devi, he had to obtain a Probate in respect of the last will and testament of Smt. Jabitri Devi, from a competent civil court because the non petitioner Smt. Kanti Devi herself happened to be a daughter of late Smt. Jabitri Devi and was claiming to be also a legal heir of the deceased.

(3.) LET us analyse the various decisions which are well recognised for the present purpose. We must not lose sight of the fact that an unprobated Will can be used for collateral purposes. An executor under it can deal with the property and give perfectly a good title though it may be that in order to complete the title, it requires probate to be taken out at a later date, vide AIR 1924 Madras 67. A suit for pecuniary legacy unconnected with the immovable property is maintainable without a Probate, vide AIR 1930 Madras 956. An unprobated Will can be looked into for collateral purposes as has been held in AIR 1942 Calcutta 401. Under Section 213 of the Indian Succession Act, it has to be borne in mind that the grant of a Probate is not a condition precedent to institution of the suit, but an executor or legatee will not be entitled to a decree unless Probate is granted to him before passing of the decree as was held in AIR 1932 Bombay 13 and AIR 1980 Calcutta 117, at page 118. So long as compliance with Section 213 is prior to the decree, the fact that it was obtained after the institution of the suit is immaterial, as was held in 1938 Indian Appeals 7, which was followed in AIR 1942 Calcutta 571 at page 574. In AIR 1982 Patna 208 (212), it was held that a legatee, upon prima facie proof that he is a legal representative is entitled to be substituted as a legal representative in place of the deceased testator, whose legal representative he claims to be under the Will, even if the Probate or the Letters of Administration has not been granted in respect of the Will. In a case where suit is commenced without necessary Letters of Administration or Probate, the Court may grant a conditional decree, suspending its operation until the Letters of Administration or Probate has been obtained, as was held in AIR 1930 Rangoon 218 (221).