Judgment B. N. Agrawal, J. 1. -this revision application has been filed by the petitioners for setting aside order dated 9-8-1983 passed by the learned Subordinate judge whereby he has rejected the petition filed on behalf of the petitioners for adding them as party-defendants upon the death of Most. Mantora Kuer, defendant No.1. 2. The plaintiff filed a suit for declaration that the decree passed in T. S. No.750 of 1970 was illegal, void and not binding upon the plaintiff The further relief sought for was that the deed of gift dated 23-6-1979 alleged to have been executed by father cf the plaintiff in favour of defendant No.1 was illegal, void and not binding on the plaintiff. 3. During the pendency of the suit, defendant No.1 died and after her death, the plaintiff and other defendants filed a compromise petition in the suit wherein the defendants accepted the claim of the plaintiff. The petitioners filed an application for adding them as party which application, in effect and substance, was an application for substitution. In the said application, it was stated that during her life time, defendant No.1 executed a will on 15-6-1982 in favour of the petitioners. The prayer made on behalf of the petitioners was objected by the plaintiff and defendants and the court below by the impugned order rejected the prayer on the ground that the petitioners had not obtained any probate; as such, they could not be impleaded as party in view of the provisions of Sec.213 of the Indian Succession Act, 1925 (hereinafter referred to as the Act ). Hence this revision application. 4. When this case was placed for admission before a learned single Judge on 26-8-1983, be directed the same to be placed for admission before a Division bench as correctness of the decision of a learned single Judge of this court in the case of Arjun Prasad and others V/s. Biteswar Singh (1982 B. B C. J. , 367) : 1982 BLJ 454 was doubted. Thereafter, the case was placed for admission before a Division Bench which admitted the same on 1-9-1983. 5. Thereafter, the case was placed for admission before a Division Bench which admitted the same on 1-9-1983. 5. The sole point which fails for consideration in this revision application is as to whether a legatee under unprobated will can be implesded as party upon the death of testator or not, who was a party to the suit and section 213 of the Act debars a court front recognising and impleading a legatee under unprobaled will unless and until a probate or letters of admiristration has been obtained in respect of the will under which he claims. For deciding this question, it would be necessary to refer to the provisions of sections 211 end 213 of the Act, relevant portions of which are quoted hereunder: "211. Character and property of executor or administrator as such (1) The executor or administrator, as the case may be, of a deceased person is his legal representative for all purposes, and all the property of the deceased person vests in him as such. " "213. Right as executor or legatee when established- (1) 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 a copy of an authenticated copy of the will annexed. " (Emphasis added) It has to be seen whether the expression right as used in Sec.213 is wide enough to include a right to prosecute a suit or proceeding or is the expression right confined to the right to enforce a claim for which a suit or legal proceeding is brought. The language of Sec.213 (1) is very clear and it says that no right can be established in a court. Institution of a case is something different than establishment of a right. Sec.213, in my view, does not preclude a person freer; instituting a case or setting up a defence on the basis of unprobated will, but it only debars a person from enforcing the right claimed on the besis of unprobated will unless and until a probate or letters of administration is obtained. According to Sec.211, an executor or administrator of a deceased person is his legal representative for all purposes and all the properties of the deceased vest in him as such. According to Sec.211, an executor or administrator of a deceased person is his legal representative for all purposes and all the properties of the deceased vest in him as such. This question was considered by the Privy Council in the case of Meyappa Chetty v, soona Navena Supramanian Cheity (AIR 1916 Privy Council, 202 ). In that case, letters of administration pendente lite was granted in favour of an administrator in the year 1910 and thereafter he filed a suit in the year 1911 and during the pendency of the suit probate was granted in the year 1912. In those circumstances, a question had arisen whether before grant of prol ate a suit could have been filed to enforce the right claimed on the basis of a will, and it was held that such a suit could have been instituted under law but no decree could be passed unless a probate is granted. It was laid down by their Lordships of the Judicial Committee as follows :- "it is quite clear that an executor derives bis 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 be can institute en 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. An administrator, on the other hand, derives title solely under his grant and cannot, therefore, institute an action as administrator before he gets his grant. " "it would seem, therefore, that an executor is not only the legal representative of his testator, but capable of instituting an action,,,. . . " According to the decision of the Judicial Committee, the property of the testator vests in the executor immediately upon testators death But so far administrator is concerned, he derives title only upon the grant and not upon the death of the testator. It has also been laid down that executor is not only legal representative of testator but is capable of instituting an action. 6. In the case of Mrs. It has also been laid down that executor is not only legal representative of testator but is capable of instituting an action. 6. In the case of Mrs. Hern Nolini Judah V/s. Mrs, Isolyne Sarojbashini base and others (AIR 1962 Supreme Court, 1471), the plaintiff filed a suit for declaration and the defendant in that suit made a claim on the basis of probated will, but the testator from whom the defendant claimed to have acquired the property under the will had also acquired the same under a will probate of which was not obtained. It was held that the defendant could not have been allowed to establish the claim on the basis of such a will, but their Lordships while dealing with the question observed that what is barred under Sec.213 is not making a claim but establishing a claim on the basis of unprobated will. It was obseived as follows : "the words of Sec.213 are not restricted only to those cases where the claim is made by a person directly claiming as a legatee. The section does not say that no person can claim as a legatee or as an executor unless he obtains probate or letters of administration of the will under which he claims. What it says is that no right as an executor or legatee can be established in any Court of Justice, unless probate or letters of administration have been obtained of the will under which the right is claimed. " (Emphasis added) 7. In the case of Andhra Bank Ltd. V/s. R. Srinivasan and others, A. I. R.1962 SC 232, it has been laid down that the expression legal representative in Sec.2 (11) of the Code of Civil Procedure includes even those legatees who obtain only a part of the estate of the deceased under will and if such a legatee can be regarded as a legal representative in view of the aforesaid dtcision, it cannot be doubted that universal legatee like the petitioner must be regarded as a legal representative of the deceased testator. 8. A Division Bench of this Court has laid down in the case of Ramcharan singh v, Mst. Dharohar Kuer, AIR 1954 Pat 173 ) that a legatee derives his title and authority from the will of its testator and not from the grant of probate. 8. A Division Bench of this Court has laid down in the case of Ramcharan singh v, Mst. Dharohar Kuer, AIR 1954 Pat 173 ) that a legatee derives his title and authority from the will of its testator and not from the grant of probate. It has been further laid down that a legatee is creature of the will and like the executor, legatee comes into existence as soon as the will becomes an operative document, that is to say, when the testator dies. It has been pointed out in that case that Sections 119 and 174 of the Act shows that the vesting of property immediately on the death of the testator, independently of the grant of probate or letters of administration, as the case may be, is not foreign to the Act, Their Lordships relied upon a decision of the Privy Council in the case of Chandra Kishore Roy V/s. Prasanna Kumari Das, ilr XXXVIII Cal 327. In that case, two legatees under the will rf a testator had brought suits for recovery of arrears of maintenance alleged to be due to them under the will, suits had been instituted before they had obtained letters of administration, but the same was obtained before passing of the decree. On the basis of Sec.187 of the Indian Succession Act, 1865, which was in part materia with Sec.213, it was contended on behalf of the defendant in that suit that legatees were not competent to maintain their suits as they had not obtained letters of administration. The plea was negatived in that case by Judicial Committee holding that since letters of administration had been obtained prior to the decree, the provisions of the section were strictly complied with. It was observed that as the compliance was made before the decree the court was fully competent to deal with the case. 9. In the case of Narendra Kumar Jain V/s. Kamla Presad Jain.1972 bljr 18, the court below refused to substitute the executor in place of the testator who was originally the plaintiff and died during the pendency of the suit on the ground that no probate could be granted in respect of the will. When revision was preferred, this Court set aside the order and directed to substitute the executor in place of the testator. When revision was preferred, this Court set aside the order and directed to substitute the executor in place of the testator. The learning Single Judge after considering the entire matter observed as follows : "it is not possible for me to accept this contention of learned counsel in view of the fact tbat there is a vital difference in between establishing a right in Court of law on the basis of a Will which is unprobated and the right of being substituted in place of the original plaintiff which the petitioner seeks to enforce as an executor of the will executed by the sole plaintiff. " 10. In the case of Arjun Prasad and others V/s. Biteswar Singh, 1982 BBCJ, 367: 1982 BLJ 454, another learned Single Judge of this Court was considering a case where trial court directed for substitution of legatee under a will, which was not probated, in place of the testator, who was the plaintiff, and this Court upheld the order and laid down that a legatee under an unprobated will can be substituted in place of the testator. I am in respectful agreement with the law laid down by the learned Single Judge in the cases of Narendra Kumar Jain (supra) and Arjun Prasad (supra) and in my view law has been correctly laid down therein. 11. The trial court has rejected the prayer made on behalf of the petitionets by placing reliance upon a Bench decision of this Court in bhudeb Chandra Roy V/s. Bhikshakar Pattanatk and others, AIR 1942 Patna 120. In the said case, after filing of the suit, but before passing of the decree, probate was obtained and it was laid down that provision of Sec.213 of the Act was complied with. This Court observed that no Court shall recognise right of executor unless he has obtained probate of the will under which he has claimed in the con text that tight of executor cannot be established in a court unless probate is granted. It was clearly held that the estate of the deceased testator vests in the executor immediately upoa the death of the testator. The law laid down in the said case supports the contention of the petitioners and does not run counter to the same. 12. It was clearly held that the estate of the deceased testator vests in the executor immediately upoa the death of the testator. The law laid down in the said case supports the contention of the petitioners and does not run counter to the same. 12. In view of the foregoing discussions, I hold that a legatee or executor of an unprobated will making a claim on the basis of the same can institute a suit or take a defence in a suit on the basis of such a Will, but his claim cannot be established in a court of law unless and until a probate or letters of administration is granted meaning thereby that neither any decree can be passed in favour of a plaintiff nor defence can be accepted in such a suit unless probate or letters of administration is obtained before its disposal. I also hold that if such legatee or executor can institute a suit or set up a claim by way of defence, he can be allowed to be substituted in place of the testator or added as a party if he makes a claim on the basis of an unprobated will. Therefore, it is held that the court below has committed error of jurisdiction in refusing the prayer made on behalf of the petitioners, and thereby refusing to exercise jurisdiction vested in it under law. I am of the view that if the impugned order is allowed to stand, there will be failure of justice and irreparable injury would be caused to the petitioners if they are not permitted to be impleaded as party, the suit ia allowed to be disposed of in terms of the compromise and they would be required to challenge the decree by filing another suit leading t o multiplicity of the suit. 13. It has been said that the present suit being T. S. No.161/80 was filed in the year 1980 and the application for grant of probate was filed by the petitioners in the year 1983 before the District Judge, Rohtas at Sasaram being Probate Case No.46/83 which is still pending. 13. It has been said that the present suit being T. S. No.161/80 was filed in the year 1980 and the application for grant of probate was filed by the petitioners in the year 1983 before the District Judge, Rohtas at Sasaram being Probate Case No.46/83 which is still pending. If the suit is allowed to proceed after impleading the petitioners therein, the same will be disposed of in terms of compromise as no evidence will be required to be adduced therein and the petitioners claim will be ignored I am told that probate case has not been disposed of as yet and unless probate is granted, the claim of the petitioners in the title suit cannot be established. In the facts of this case. I am of the view that till disposal of the probate case, the proceeding of the title suit should be kept in abeyance, 14. In the result, this application is allowed, the impugned order is set aside and the court below is directed to implead the petitioners as defendants in the suit. After impleading the petitioners as defendants in suit, the trial court shall ask the parties who are already on the record from before as to whether they propose to press the compromise petition or not. If they propose to press the compromise petition and the trial court is of the view that compromise is lawful and can be recorded, it shall not record the same and stay the proceedings of the suit till the disposal of the probate case. On the other hand, if the court below rejects the compromise petition, it shall proceed with the hearing of the suit but shall not deliver judgment until the probate case is disposed of by the trial court. Let hearing of the probate case be expedited. In the circumstances of the case, I direct that the parties shall bear their own costs. Nagendra Ral, J.-I agree. Civil revision allowed]