Rajendra Bagaria v. Surinder Kumar — 1992 DIGILAW 304 (CAL)

JUDGMENT The judgment of the Court was as follow :–– Chatterjee, J.: The short question which arises for determination in this appeal is whether an Executor to the Will of a deceased decree-holder is entitled to take possession of a premises as his legal representative in respect of which the decree for eviction had been passed, in execution of the said decree without producing the probate of the will in question in the executing Court in view of Section 213 of the Indian Succession Act, 1925 (the Act for short). 2. Mr. J.J. Madan, who is the Appellant No. 2 herein (hereinafter referred to as "Mr. Madan") was a tenant in respect of Eastern Portion of Premises No. 3, Surendra Nath Banerjee Road, Calcutta-700013 (hereinafter referred to as the "Decretal Premises") under the decree-holder, Roson Lal Aurora, since deceased, (hereinafter referred to as 'the deceased decree-holder'). In the year 1974 the deceased decree-holder instituted a suit for ejectment in respect of the decretal premises against Mr. Madan on ground that Mr. Madan had sublet the decretal premises to one Mohon Lal Bajoria, now deceased. On 16th of June, 1980 the aforesaid ejectment suit was decreed exparte on a finding that Mr. Madan had sublet the decretal premises to the said Mohon Lal Bajoria, now deceased. For setting aside the aforesaid ex parte decree for eviction an application under Order 9 Rule 13 of the Code of Civil Procedure was filed by Mr. Madan through Mohonlal Bajoria, now deceased, who was holding a Power of Attorney alleged to have been executed by Mr. Madan Roson Lal Aurora, who has been described as the 'Deceased Decree-holder' for our purpose died during the pendency of the application under Order 9 Rule 13 of the Code of Civil Procedure. Initially, Harish Kumar Arora, one of the respondents and one of the sons of the deceased decree-holder was substituted as an heir and legal representative of the deceased decree-holder in the application under Order 9 Rule 13 of the Code of Civil Procedure at the instance of Mr. Madan and his constituted Attorney Mohon Lal Bajoria now deceased. Subsequently, another application for addition of party and for amendment of the application under Order 9 Rule 13 of the Code of Civil Procedure was filed on behalf of Mr. Madan and his constituted Attorney Mohon Lal Bajoria now deceased. Subsequently, another application for addition of party and for amendment of the application under Order 9 Rule 13 of the Code of Civil Procedure was filed on behalf of Mr. Madan praying that Surinder Kumar Arora, who is another son of the deceased decree-holder be also added and/or substituted as an heir and legal representative of the deceased decree-holder and as a consequence thereof the cause-title of the application under Order 9 Rule 13 of the Code of Civil Procedure be amended in the following manner :–– "That after the description of the Opposite Parties, the words that both sons of late Roshan Lal Aurora and Executors to the Will left by the deceased Roshan Lal Aurora be added." 3. It appears from the record that this application filed on behalf of Mr. Madan was allowed and the respondents were therefore substituted as sons of the deceased decree-holder and also as Executors to the Will left by the deceased decree-holder. The application under Order 9 Rule 13 of the Code of Civil Procedure was thereafter rejected by the Trial Court and an appeal was taken to this Court against the said order of rejection. During the pendency of the appeal in this Court it appears that Mohon Lal Bajoria who was alleged to be the constituted Attorney of Mr. Madan also died and the present Appellant No. 1 continued with the said appeal on the basis of another Power of Attorney executed by Mr. Madan in his favour. The appeal against the order rejecting the application under Order 9 Rule 13 of the Code of Civil Procedure was subsequently dismissed by this Court and a Special Leave Petition taken therefrom to the Supreme Court had also been dismissed. On or about 9th April, 1987 the Respondents as sons and as executors to the Will of the deceased decree-holder filed an application in the Executing Court for permission to execute the decree obtained by the deceased decree-holder. By an order dated 8th July, 1987 the Executing Court passed an order allowing the respondents to proceed with the execution case filed by them. The executing Court by the aforesaid order held that as the Respondents were substituted in the application under Order 9 Rule 13 of the Code of Civil Procedure in place of the deceased decree-holder at the instance of Mr. The executing Court by the aforesaid order held that as the Respondents were substituted in the application under Order 9 Rule 13 of the Code of Civil Procedure in place of the deceased decree-holder at the instance of Mr. Madan and the respondents being the executors to the Will of the deceased decree-holder must be permitted to proceed with the execution case as "Legal Representatives" of the deceased decree-holder. On 24th November, 1987 an application under Order 21 Rule 97 of the Code of Civil Procedure was filed by the Respondents for police help on the ground that as strong resistance in executing the decree was offered by the Appellant No. 1 there was apprehension of breach of peace and in consequence thereof decree for eviction could not be executed. By the order under appeal the executing Court allowed the application under Order 21 Rule 97 of the Code of Civil Procedure and directed the Officer-in-Charge, Taltala Police Station to render police help to the respondents at the time of execution of the said decree. The present appeal has been preferred against this order of the Executing Court allowing the application filed on behalf of the Respondents for police help. 4. The main contention of Mr. Dasgupta, appearing on behalf of the appellants was that as the Will executed by the deceased decree-holder had not been probated, and the right of the Respondents under the Will of the deceased Decree-holder had not been established, the question of taking possession of the decretal premises by the respondents in execution of the decree for eviction obtained by the deceased decree-holder could not arise until the probate of the Will in question was produced before the Executing Court in view of Section 213 of the said Act which created a bar to the respondents to take possession of the decretal premises in execution of the said decree. In support of this contention, Mr. Dasgupta relied on the decision of the Supreme Court reported in (1) AIR 1962 Supreme Court 1471 (Hum Nalini Juda, since deceased, v. Mrs. Isoline Saroj Basini Bose & Ors.) and also the decisions reported in (2) 20 CWN Page 837 (Soona Mayaa Kena Roona Meyappa Chitty v. Soon Naveba Suppramanian Chitty) and (3) 84 CWN Page 267 (Amar Chandra Roy & Anr. v. Abanidhar Roy & Ors.). Isoline Saroj Basini Bose & Ors.) and also the decisions reported in (2) 20 CWN Page 837 (Soona Mayaa Kena Roona Meyappa Chitty v. Soon Naveba Suppramanian Chitty) and (3) 84 CWN Page 267 (Amar Chandra Roy & Anr. v. Abanidhar Roy & Ors.). Reliance was also placed on behalf of the appellants to the case of (4) Vaman Ganpatrao Trilokedar & Ors. v. Mrs. Malati Ramchandra Raut & Ors.), reported in AIR 1988 Bombay 321. 5. The contention so raised by Mr. Dasgupta was seriously contested by Mr. Kapoor appearing on behalf of the respondents. According to Mr. Kapoor, Section 213 of the Act had no application to the facts of this case. He submitted that respondents having had admitted by the appellants as the legal representatives of the deceased decree-holder, they were entitled to execute the said decree in view of Section 211 of the Act and 2 (11) of the Code of Civil Procedure. Mr. Kapoor further submitted that the decisions cited on behalf of the appellants had not manner of application to the facts of this case. 6. In order to appreciate to rival contentions of the parties it is necessary to notice Sections 211 (1) and 213 (1) of the Act which are as follows :–– Section 211 "(1) the executor or administrator, s 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." Section 213 "(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." 7. It is clear from a plain reading of the aforesaid provisions of the Act, that there is nothing to prevent the executor from dealing with the properties of the deceased without obtaining a probate because under Section 211(1) of the Act, the executor is the "Legal Representative" of the deceased for all purposes and all the properties vest in him as such, so that the grant of probate is not condition precedent to such acts. Section 213(1) of the Act only creates bar to the establishment of right under a Will by an executor or a legatee unless probate or letters of administration of the Will is obtained. It could not be disputed by Mr. Dasgupta that the respondents were "Legal Representatives" of the deceased decree-holder in terms of Section 211 of the Act and in view of the order passed by the Executing Court on 8th of July, 1987 and it could not also be disputed by Mr. Dasgupta that the respondents were the " Legal Representatives" of the deceased decree-holder in terms of Section 2(11) of the Code of Civil Procedure. But he submitted that the respondents were not entitled to execute the decree and take possession of the decretal premises in execution of the said decree in view of Section 213 of the Act which clearly created a bar to the establishment of the right under the Will in question by the Respondents unless probate of the Will in question was produced before the Executing Court. 8. Let us therefore consider the question whether Section 213 creates a bar to the respondents who are the "Legal Representatives" of the deceased decree-holder to take possession of the decretal premises in execution of the decree unless the probate of the Will in question is produced before the Executing Court. 9. Again on a careful perusal of Section 213 of the Act, it is evident that Section 213 of the Act has no manner of application to the facts of this case as in this case the Respondents as executors to the Will of the deceased decree-holder did not start the action for eviction against the tenant, nor they obtained the decree as execution to the Will in question. It also appears that the deceased decree-holder did not claim his right under a Will of another person who was alleged to be the owner of the decretal premises. The Supreme Court decision reported in AIR 1962 SC 1471 (Mrs. Marlean Wilkinson v. Mrs. Isolyne Sarajbasini Bose & Ors.) on which Mr. It also appears that the deceased decree-holder did not claim his right under a Will of another person who was alleged to be the owner of the decretal premises. The Supreme Court decision reported in AIR 1962 SC 1471 (Mrs. Marlean Wilkinson v. Mrs. Isolyne Sarajbasini Bose & Ors.) on which Mr. Dasgupta relied in support of his contention has held that where a person claiming as legatee under a Will of which he had obtained letters of administration filed a suit for declaration of his title in regard to a property included in the Will and sought to establish that the ownership of that property vested in his testator as a legatee under a Will executed in favour of his testator by another person and no probate had been obtained in regard to that Will, Section 213 barred the said person from establishing the right of his testator as a legatee under the alleged Will as no probate or letters of administration had been obtained. In the same decision the Supreme Court pointed out thus :–– "The words of Section 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, and therefore, it is immaterial who wishes to establish the right as a legatee or an executor. Whosoever wishes to establish that right, whether it be a legatee or an executor himself or somebody else who might find it necessary in order to establish his right to establish the right of some legatee or executor from whom he might have derived title, he cannot do so unless the Will under which the right as a legatee or executor is claims has resulted in the grant of a probate or letters of administration." (Emphasis is added) 10. In my view the aforesaid decision of Supreme Court is of no help to the appellants as already stated hereinabove. In my view the aforesaid decision of Supreme Court is of no help to the appellants as already stated hereinabove. In that case a person claiming as legatee under a Will of which he had obtained letters of administration and seeking to establish that the ownership of that property had vested in his testator as a legatee under a Will executed in favour of his testator by another person, could not get right to the property until the probate or the letters of administration had been obtained in regard to the Will in question. In the case at hand we are not at all concerned with that problem because the deceased decree-holder was not claiming his right or ownership of the property on the basis of a Will of another person, who was the owner of the property in question. The deceased decree holder who was admittedly the owner and the landlord of the decretal premises had the right to file the suit for eviction against his tenant and to get a decree on the basis of such right. It is not a case where he was claiming right on the basis of a Will executed by the owner of the property of which the probate had not been granted. 11. Similar is the position in respect of the observations made in the case of Vaman Ganpatrao Trilokedar & Ors. v. Mrs. Malati Ramchandra Raut & Ors. reported in AIR 1988 Bombay 321 which was also relied on behalf of the appellants. In that case also the Bombay High Court relying on the aforesaid decision of the Supreme Court held that the Executors or heirs of the deceased could seek leave of the Court under Section 3 of the Partition Act (Act 4 of 1984), if they were co-sharers of the properties and they could be held to be co-sharers in the properties only if their rights had been established by probates. It was further held in the said decision that in the absence of probates they could not claim the right of co-sharers under Section 3 of the Partition Act as already stated hereinabove. Again the facts of his case are totally different to that of the case in hand. It was further held in the said decision that in the absence of probates they could not claim the right of co-sharers under Section 3 of the Partition Act as already stated hereinabove. Again the facts of his case are totally different to that of the case in hand. In the Bombay decision it has been clearly stated that in order to establish rights as co-sharers in the properties in the basis of a Will of a deceased, such rights could only be established by production of probate which is also the principle laid down by the Supreme Court (Supra) with which as stated hereinabove we are not at all concerned in this case. Therefore, no reliance can be placed to the decision of Bombay High Court. In the decision of the Privy Council reported in 20 CWN, Page 833 (Soona Mayna Kena Roona Meyappa Chitty v. Soona Navaba Supptamanian Chitty), the issue for decision before the Privy Council was totally different to that of this case in hand. In the said decision it was considered whether a suit could be instituted by an executor to a Will of the deceased and such suit could be decree without the production of probate of the Will in question. This decision in my view has no relevance so far as this appeal is concerned as in this case the deceased decree-holder the decree for eviction as an owner and landlord of the decretal premises against his tenant and that decree was going to be executed by the respondents as "Legal Representatives" of the deceased. The said decision of the Privy Council, nowhere said that as a legal representative of the deceased decree-holder, the Executor cannot deal with the property, and they cannot execute the decree obtained validly by the original owner of the property in question. As stated hereinabove in this appeal the deceased decree-holder did not claim his right to evict his tenant on the basis of a right under a Will by which the property was bequeathed by the owner in his favour. The deceased decree-holder claimed his right on his own and therefore after the decree was passed the respondents as the legal representative of the said deceased, were entitled to execute the decree and take possession of the decretal premises in execution of the said decree. The deceased decree-holder claimed his right on his own and therefore after the decree was passed the respondents as the legal representative of the said deceased, were entitled to execute the decree and take possession of the decretal premises in execution of the said decree. The decision reported in 84 CWN Page 267 (Amar Chandra Roy & Anr. v. Abanidhar Roy & Ors.) also does not help the appellants. The said decision is the authority for the proposition that who are the persons to be substituted in the suit in place of a deceased party who has executed a Will and also has left heirs at law. The Division Bench has held in that decision that where a person dies leaving a Will as well as heirs at law it would be fit and proper that both the heirs at law and the executor to the Will of the deceased should be substituted in place of the deceased and both should be allowed to continue to proceed with the suit. Therefore, the point for consideration before the Division Bench in the aforesaid decision was totally different to that of this case, because in this appeal we are only concerned whether the respondents, being the executors to the Will of the deceased decree-holder as legal representatives, are entitled to execute to decree and take possession of the decretal premises in execution of the said decree without production of the probate of the Will in question and we are not at all concerned who would be the persons entitled to be substituted in the suit in place and stead of a deceased who has left a Will. 12. As already stated hereinabove, under Section 211 of the Act, the Executor is the 'Legal Representative' of the deceased decree-holder for all purposes and the decretal premises vests in him on the death of the deceased decree-holder. The deceased decree-holder claimed eviction of his tenant on his own right and did not claim the right to evict his tenant on the basis of a Will of any other person who was having the right, title and interest in the decretal premises when the Will of that person was not probated. The deceased decree-holder claimed eviction of his tenant on his own right and did not claim the right to evict his tenant on the basis of a Will of any other person who was having the right, title and interest in the decretal premises when the Will of that person was not probated. Such being the position Section 213 of the Act cannot be a bar to the respondents to obtain possession of the decretal premises in execution of the decree as 'Legal Representatives' of the deceased decree-holder. Mr. Dasgupta tried to submit that although the respondents were the legal representatives and they were rightly allowed to proceed with the execution proceedings as legal representatives but that would not give a right to the respondents to obtain possession of the decretal premises in execution of the said decree before the probate of the Will in question was produced before the Executing Court. In view of my discussions made hereinabove, I fail to understand the logic behind this submission. If the executors to the Will in question as legal representatives of the deceased decree-holder are allowed to proceed with the executing proceeding then how can it be said that such legal representatives are not entitled now to execute the decree and take possession of the decretal premises in execution of the said decree until the probate of the Will in question it produced in the execution proceeding. In my view, as already stated hereinabove Section 211 of the Act gives such right to the respondents to deal with the properties of the deceased decree-holder in any manner they like and therefore as legal representatives of the deceased decree-holder, they were entitled to execute the decree and take possession of the decretal premises. There was no necessity for the respondents to produce the probate of the Will of the deceased decree-holder before the Executing Court at the time of executing the decree or at the time of taking delivery of possession of the decretal premises in execution of the said decree. Same view has been expressed in the case of (5) Sri Gobinda Ballav Chakraborty v. Biswanath Mustafi, reported in 1979 (2) CLJ Page 325, with which I respectfully agree. Mr. Dasgupta however, sought to distinguish the aforesaid Single Bench Decision by submitting that in the said decision subsequently the probate was granted and the same was produced before the Court. Same view has been expressed in the case of (5) Sri Gobinda Ballav Chakraborty v. Biswanath Mustafi, reported in 1979 (2) CLJ Page 325, with which I respectfully agree. Mr. Dasgupta however, sought to distinguish the aforesaid Single Bench Decision by submitting that in the said decision subsequently the probate was granted and the same was produced before the Court. After going through the aforesaid Single Bench decision, I am of the view that G. N. Ray, J. (As His Lordship then was) laid down the principle that an Executor to a Will of the deceased, being the legal representative within the meaning of Section 211 of the Act is entitled to execute the decree obtained by the deceased decree-holder. If it was only a case of subsequent production of the probate of the Will in question then certainly His Lordship could not have decided the said matter by laying down the aforesaid principle as after the production of the probate, the said principles were not needed to be laid down. In this view of the matter, I am unable to agree with Mr. Dasgupta that the Single Bench Decision could be distinguished as in that decision subsequently probate was granted and the same was produced before the Court. Such being the position, I am unable to hold that before taking possession of the decretal premises in execution of the said decree, the respondents must produced the probate of the Will in question before the Executing Court or in other words the respondents who were the legal representatives of the deceased were not entitled to execute the decree and take possession of the decretal premises in execution of the said decree without producing the probate of the Will in question. 13. That apart, it appears from the record that the appellants themselves substituted the respondents both as sons and as executor to the Will of the deceased decree-holder, and the respondents were allowed to proceed with the execution case both as sons and as executors to the Will in question by the order dated 8th of July, 1987 of the Executing Court which must be said to have been accepted by the appellants s they had not taken any step against the same. Mr. Mr. Dasgupta submitted in this connection, relying on a Division Bench Decision of the Andhra Pradesh High Court reported in (6) AIR 1960 Andhra Pradesh 273 (Sri Raja Kakarlapudi Venkata Sudarsana Sundara Narasayamma Garu (deceased) v. Andhra Bank Ltd., Vijayawada) that where an Executor had accepted the office of the Executor under a Will he could not apply for execution of the decree as an heir of the testator as if on intestacy and he must obtain probate at the time of execution of the decree. I cannot appreciate how the aforesaid decision helps the appellants. In that decision one of the questions before it was that who had the right to Sue ? Is it the Executor of a Will when he has already accepted the office of the Executor or is it the heirs of the deceased who has left the Will ? In that context in the said decision, the answer has been given that where a plaintiff accepts the office of the Executor he cannot file a suit s an heir of the testator, as if on intestacy and he must obtain probate before filing the suit. In this case we are not concerned with this principle. In the case at hand, we are concerned who can execute the decree for eviction obtained by the deceased decree-holder. Under Order 21 Rule 16 of the Code of Civil Procedure the heirs of the deceased decree-holder may apply for execution of the decree to the Court which passed the decree as the interest of the decree-holder in the decree is transferred by operation of law upon them. (See (7) AIR 1955 SC Page 376 (Jugal Kishore Saraf v. Raw Cotton Co. Ltd.). Therefore the heirs of the deceased decree-holder become joint decree-holder and an entitled to apply for execution of the said decree. Order 21 Rule 15 of the Code of Civil Procedure enables one or several joint decree-holder to take out execution on behalf of and for the benefit of the other joint decree-holder. I am not unmindful of the fact that Order 21 Rule 15 of the Code of Civil Procedure speaks of decree-holder in whose favour a joint decree has been passed. I am not unmindful of the fact that Order 21 Rule 15 of the Code of Civil Procedure speaks of decree-holder in whose favour a joint decree has been passed. In view of the observation made hereinabove that on the death of the decree-holder, his heirs become the joint decree-holder by operation of law in terms of Order 21 Rule 16 of the Code of Civil Procedure, there cannot be any reason to hold that the heirs of the deceased decree-holder do not become joint decree-holders under Order 21 Rule 15 of the Code of Civil Procedure. That being the position, I am of the view that it was open to the respondents to execute the decree as sons of the deceased decree-holder as well even if it could be said that they were not entitled to execute the decree as executors to the Will of the deceased decree-holder until the probate of such will was produced before the Executing Court. In this connection, Mr. Dasgupta submitted that in the absence of other heirs of the deceased decree-holder on record, the respondents being some of the heirs of the deceased were not entitled to execute the decree, without bringing the other heirs on record. It does not appear from the records that such objection had been taken by the appellants in the written objection filed on their behalf in the Executing Court. If a decree-holder died leaving a number of heirs they will evidently become joint decree-holders after the death of the person in whose favour the decree was passed and there cannot be any reason why some of the heirs of the deceased will not be entitled to execute the decree for the benefit of all the heirs of the deceased decree-holders. In this case there is nothing to show from the record that the decree, if allowed to be executed, cannot benefit the other heirs and legal representative of the deceased. If the decree for eviction is allowed to be executed and possession is taken, it will certainly benefit all the heirs and legal representatives of the deceased. Apart from that it appears from the record that not objection was also raised by the appellants in this regard in the Executing Court as to the entitlement of the respondents who are some of the heirs of the deceased decree-holder to execute the said decree. 14. Apart from that it appears from the record that not objection was also raised by the appellants in this regard in the Executing Court as to the entitlement of the respondents who are some of the heirs of the deceased decree-holder to execute the said decree. 14. In view of the observations made hereinabove, I am of the view that the Respondents who are some of the heirs and executors to the Will of the deceased decree-holder are not only entitled to execute the decree for eviction obtained by the deceased decree-holder as executors to the Will of the deceased decree-holder but also as his heirs as well and therefore the main question that needed to be decided in that appeal must be held to be in the affirmative. 15. For the reasons aforesaid the appeal fails and is dismissed with costs assessed at 30 G.Ms. 16. Before I part with this judgment, one more fact needs to be stated. Against the order impugned in this appeal, the appellants have also filed a revisional application presumably for abundant caution. Since we have decided the appeal on merits without going into the question of maintainability of the appeal, no order need be passed on the revisional application which is also being disposed of accordingly. Executing Court is now directed to proceed with the execution case forthwith. Ahmed, J.: I agree.