D.C. Chakravorti, J.
1. This Rule is directed against Order No. 34 dated December 1, 1977 whereby the learned Munsif rejected the petition for substitution made by the present petitioners Nos. 1 and 2.
2. The facts relevant for the purposes of this case are as follows. Two brothers, namely, Ram Mohit and Ram Mohan, filed a suit for eviction against the present opposite party. When the suit was still pending said Ram Mohit died on June 3, 1977 leaving a will whereby he is said to have appointed the present petitioners Nos. 1 and 2 the executors to his will. On July 27, 1977 the petitioners Nos. 1 and 2 in their capacity of executors made an application of being substituted in place of Ram Mohit. The application was opposed by the present opposite party before the Court below. The learned Munsif rejected that application.
3. Mr. Shyama Prasanna Roy Choudhury, the learned Advocate appearing in support of the Rule, contends that having regard to the provisions of Sections 211, 213 and 306 of, the Indian Succession Act the learned Munsif acted illegally and with material irregularity in rejecting the prayer for substitution. Regard being had to the provisions of Section 2(11) of the Code of Civil Procedure and Section 211 of the Indian Succession Act it can very well be accepted as the correct legal position that when a person dies after leaving a will the executor appointed by him would represent the estate and would be regarded as a legal representative of the deceased's estate. According to the provisions of Section 306 of the Indian Succession Act in the present case on the death of one of the joint plaintiffs the right, to prosecute the action already commenced does exist in favour of the executors appointed by the deceased plaintiff Section 213(1) of the Indian Succession Act provides 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 *** *** Thus according to the provisions of Section 213 referred to above the right of an executor has to be established only in a court of competent jurisdiction having power to grant probate of the Will under which the right is claimed. The question that now arises for determination is whether before the grant of probate the petitioners Nos. 1 and 2 may claim to be substituted in place of the deceased plaintiff. Ram Mohit. Section 213 referred to above only lays down that an executor cannot establish his claim as such before he obtains probate of the Will. But Section 213 does not operate as a bar to the institution or prosecution by him of an action before obtaining the probate of the Will subject to this that in a suit so instituted or so prosecuted the decree cannot be passed before the probate is obtained and produced before the Court. This is the viewtaken in a number of cases of which Imay make particular mention of ChandraKishore v. Prasanna Kumari (1911) ILR38 Cal 327 and Habibullah v. AnangaMohan Roy Choudhury, ILR (1942) 2 Cal363. We can, therefore, take it as settledlaw that the executor can bring or prosecute an action before obtaining probateprovided that no decree can be passed insuch action before the probate is obtained. In this view of the matter, the Courtbelow should have allowed the application of petitioners Nos. 1 and 2 for theirsubstitution in place of the deceasedplaintiff, Ram Mohit.
4. Mr. Chatterjee appearing for the opposite party, however, referred me to a decision in Bibhuti Bhusan Roy v. Narendra Narayan Ghosh (1950) 54 Cal WN 667. This case is distinguishable from the present case on facts and I accordingly need not discuss the principle laid down therein on the basis of the peculiar facts of that case.
5. In the circumstances aforesaid, the Rule is made absolute and the impugned order is set aside.
6. I make no order as to costs.