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2007 DIGILAW 759 (CAL)

RANU BALA v. SAIBALINI GHOSH

2007-09-27

ARUN KUMAR BHATTACHARYA

body2007
( 1 ) IN the present revisional application under Article 227 of the constitution of India, the petitioners have sought to assail the order being no. 59, dated May 10, 2006 passed by the learned Judge, Small Causes court, Sealdah in Title Appeal No. 108 of 2000 rejecting their prayer for stay of the appeal till granting of probate in favour of the appellants and filing of the same in Court. ( 2 ) THE circumstances leading to the above application are that ramendra Kumar Ghosh, Predecessor-in-interest of the petitioners instituted title Suit No. 516 of 1980 in the Court of learned Munsif (now Civil Judge (Junior Division)], First Court, Sealdah against Chandrabati Ghosh, predecessor-in-interest of the Opposite Parties for declaration and injunction which was decreed on compromise on February 11, 1981. The said chandrabati subsequently instituted Title Suit No. 592 of 1983 against ramendra Kumar Ghosh for declaration of ownership and injunction on setting aside the said compromise decree. On the death of the defendant, his legal heirs were substituted. The suit was dismissed on contest and the first and second appeals being T. A. No. 39/98 and S. A. No. 295/2000 respectively were also dismissed. The defendant Chandrabati preferred an appeal being T. A. No. 108/2000 against the compromise decree in T. S. No. 516 of 1980. On the death of Chandrabati the present Opposite Parties were substituted contending that Chandrabati left a registered Will appointing them as Executors to her estate. Though no step has been taken for obtaining probate of the alleged Will, the learned Judge, Small Causes Court at Sealdah has been proceeding with the appeal, for which the petitioners prayed for stay of all further proceedings of the said appeal till probate of the alleged Will filed in Court which was rejected by the order impugned, ( 3 ) BEING aggrieved by the said order, the petitioners have come up before this Court. ( 4 ) MR. ( 4 ) MR. Bhattacharya, learned Counsel for the petitioners, contended that though there is no legal bar for an Executor to be substituted in place and instead of deceased testator and continue the suit, in view of Section 213 (1) of the Indian Succession Act, 1925 he can get a decree only after granting probate and filing of the same in Court, in support of which he relied upon the cases of Ajit Kumar Hazra v. Rathindra Nath Roy reported in AIR 1980 Cal 117 and Ashoke Mukherjee v. Musha Khan reported in (1988)1 Cal LJ 38. Mr. Bhattacharya submitted that even if prayer for stay may not be considered favourably, there is no bar in giving a direction to the learned Court of appeal below for not passing any final order in the appeal. Mr. Banerjee, learned Counsel for the Opposite Parties, on referring the case of Gobinda Ballav Chakraborty v. Biswanath Mustafi reported in (1979)2 Cal LJ 325 while opposing the above contended that under Section 211 of the Indian Succession Act, the Executor is the legal representative of the deceased for all purposes and the property of the deceased vests in him, and grant of probate is not a condition precedent to such vesting. Mr. Banerjee submitted that the said appeal was filed not for establishing any right, title or interest but challenging the compromise decree obtained by fraud and as such it does not come under the mischief of Section 213 (1) of the Act, and so interference by this Court with the order impugned will virtually run counter to the direction of this Court passed in the civil revision being C. O. No. 2927 of 2001 for disposal of the appeal within two months. ( 5 ) FOR proper appreciation of the respective contentions of the learned Counsel for the parties, the provisions of Sections 211, 213 (1) and 227 of the Act are reproduced 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. 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. (2) When the deceased was a Hindu, Muhammadan, buddhist, (Sikh, Jain or Parsi) or an exempted person, noting herein contained shall vest in an executor or administrator any property of the deceased person which would otherwise have passed by survivorship to some other person. "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 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. * * * 227. Effect of probate - (1) Probate of a Will when granted establishes the Will from the death of the testator, and renders valid all intermediate acts of the executor as such. " ( 6 ) INDUBITABLY, there is no bar of an executor being substituted in place and stead of the deceased testator without obtaining probate of the will, as was held in a considerable number of decisions including those relied upon by the Counsel forthe parties. Though the executor can establish no right without taking out probate, the existence of the Will cannot be ignored for all purposes whatsoever. Section 213 is a bar to any right being claimed by a person under a Will whether as plaintiff or as a defendant unless probate or letters of administration of the Will have been obtained. In the absence of a probate, the Will cannot be used for establishing any right as executor or legatee. This Section does not debar the use of the Will of which no probate has been obtained as evidence for a purpose other than the establishment of a right as executor or legatee e. g. for the purpose of establishing the existence of relationship of Mohant and chela referred to in the Will, or for showing the intention of the testator with regard to his estate. But a Will of which no probate has been obtained cannot be used to be proved that any person named therein has title to the estate of the testator, as is clear from this section. There is nothing in Section 213 which would in terms make it applicable to the case of plaintiff and not to the case of defendants, (2) that a defendant can rely on an unprobated Will, provided that he does not do so in order to establish a right under the Will and (3)that where the plaintiff sues as heir-at-law and the defendant produces a will and has to prove that someone other than the plaintiff has title under the Will, i. e. where the defendant has got to prove title under the Will (either in himself or in some other person), he cannot do so unless probate of the will has been taken ; in such a case, he cannot use the unprobated Will as a defence, as was held in the Full Bench decision of the Madras High Court in Ganshamdoss v. Gulab Bi Bai, reported in AIR 1927 Mad 1054. ( 7 ) IN the case on hand, the said appeal was preferred not for claiming any right but for setting aside the compromise decree. 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 the said direction towards the establishment of a right under the Will but the same is clearly distinct from the establishment of the right itself, as was observed in the case of ashoke Mukherjee (supra) so relied upon by Mr. Bhattacharya. ( 8 ) IN any considered view, the said appeal is simply a step towards the establishment of right, since, unless and until the compromise decree is set aside, the question of claiming right would not arise, and as such it does not come under the mischief of Section 213. ( 9 ) BOTH the decisions so cited by Mr. Bhattacharya being quite; distinguishable, the same have no manner of application to the present facts and circumstances. ( 10 ) IN the light of the above discussion, the present revisional application being devoid of any merit be dismissed. There will, however, be no order as to costs.