Skip to content


Gobinda Ballav Chakraborty Vs. Biswanath Mustafi and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. No. 60 of 1976
Judge
Reported inAIR1980Cal143
ActsSuccession Act, 1925 - Sections 211, 213 and 213(1)
AppellantGobinda Ballav Chakraborty
RespondentBiswanath Mustafi and ors.
Appellant AdvocateS.P. Roy Choudhury and ;Animesh Kanti Ghosal, Advs.
Respondent AdvocateBhaskar Ghosh, Adv.
DispositionAppeal allowed
Cases ReferredUnion of India v. Tarachand Gupta
Excerpt:
- .....letters of administration. mr. ghosh contended that the decree-holders asserted their right in the suit as executors and wanted to obtain a decree in their favour as executors but under the provisions of section 213 of the indian succession act they were not entitled to establish their right as executors so long the probate of the will was not granted. mr. ghosh also contended that although the decree was passed in favour of the said executors contrary to the provisions of section 213 of the indian succession act such purported decree was a nullity. the judgment and decree passed in favour of the executors were only purported judgment and decree and were not real judgment and decree in accordance with law. accordingly, the executing court had jurisdiction to go behind the decree and to.....
Judgment:

G.N. Ray, J.

1. Appeal against the Order of Sri S. K. Mukherjee, Additional District Judge of Second Court at Alipore in Misc. Appeal No. 262 of 1975, dated the 25th day of March 1976, reversing the order of Sri H. Banerjee, Munsiff, First Court at Sealdah, dated the 31st day of March, 1975.

2. This appeal arises out of the judgment dated 25th of March, 1976, passed by the learned Additional District Judge, Second Court, Alipore, in Misc. Appeal No. 262 of 1975, reversing the Judgment and order being Order No. 35 dated 31st of March, 1975, passed by the learned Munsif, First Court, Sealdah, in Misc. Case No. 217 of 1974.

3. It appears that Title Suit No. 208 of 1966, of the 1st Court of the learned Munsif at Sealdah was decreed and the said decree was put to execution. In the said execution proceeding, an objection under Section 47 of the Code of Civil Procedure was made by the judgment-debtor respondent Biswanath Mustafi inter alia contending that the decree passed in the said Title Suit was a nullity and as such the decree was not executable. It appears that the said suit was initially instituted by one Bina Pani Debi against the said judgment-debtor. During the pendency of the said suit the said Bina Pani died and the appellants Suhasis Chandra Haldar and Gobinda Ballav Chakraborty made an application for being substituted as legal representatives of the said deceased plaintiff in the said suit on the allegation that the said plaintiff had died and she had also left a will by which the said Sri Suhasis Chandra Haldar and Gobinda Ballav Chakraborty were made executors to theestate of the said deceased Bina Pani Debi. It appears that the learned Subordinate Judge allowed the said application for substitution and the said Sri Haldar and Sri Chakraborty were substituted as plaintiffs in place of the original plaintiff Bina Pani Debi, since deceased. It is an admitted position that during the pendency of the said suit the said will of Bina Pani Debi was not probated and after the passing of the decree in the said Title Suit No. 208 of 1966, the will was probated on contest and the said Sri Suhasis Chandra Haldar and Sri Gobinda Ballav Chakraborty were adjudged as executors to the said will. It was contended before the learned munsif that so long the will was not probated the said Sri Suhasis Chandra Haldar and Sri Gobinda Ballav Chakraborty could not have been impleaded as executors to the will of the deceased Bina Pani Debi and as such, they had not the capacity to represent the estate of the said Bina Pani Debi. Accordingly, the decree passed in their favour on the footing that they were the legal representatives of the original plaintiff Bina Pani Debi was illegal and consequently the execution in terms of the said decree was not maintainable. It appears that the learned Munsif was of the view that the decree in question was not a nullity and accordingly the said Misc. case was dismissed by the learned Munsif. The judgment-debtor, thereafter, preferred an appeal being Misc. Appeal No. 262 of 1975 of the Second Court of the learned Additional District Judge, Alipore but it appears that the learned Additional District Judge allowed the said appeal and held that an executor could not represent the estate in a suit or proceeding until probate has been obtained by him and although institution of a suit ipso facto may not be illegal but if before passing of the decree, the will is not probated then under Section 213 of the Indian Succession Act, an executor is not competent to obtain a decree in any suit brought by him as executor. Accordingly, the decree passed in the suit in question was a nullity and the execution proceeding was not maintainable. Being aggrieved by the said adjudication made by the learned Additional District Judge the decree-holders have preferred the instant appeal.

4. Mr. Roy Choudhury the learned Counsel appearing for the appellant contended that the suit in question was instituted by Bina Pani Debi and the said Bina Pani Debi was quite competent to institute the said suit and to continue thesame. After the death of the said Bina Pani Debi the decree-holders, namely, the Sri Haldar and Sri Chakraborty made an application for being substituted in place and stead of the deceased plaintiff Bina Pani Debi on an allegation that the said Bina Pani Debi had left a will and the said Sri Chakraborty and Sri Haldar were executors to the estate of the deceased Bina Pani Debi under the said will. The said application for substitution was allowed by the Court and Sri Chakraborty and Sri Haldar were impleaded as plaintiffs representing the interest of the deceased plaintiff Bina Pani Debi. Mr. Roy Choudhury contended that the executors do not derive their right on the grant of the probate of the will but they derive the right and title to the estate of the deceased by virtue of the will itself and such right takes place immediately on the death of the testator. Mr. Roy Choudhury contended that the executors were the legal representatives of the deceased for all practical purposes, and immediately on the death of the testator the right to his estate vested on the executors because the executor derived their title from the will in question and not from the grant of probate. Mr. Roy Choudhury contended that the court of appeal below misconceived the provisions of Section 213 of the Indian Succession Act and also the provisions of Section 227 of the said Act and proceeded on an erroneous view that as the probate was not granted before the passing of the decree in the said Title Suit the decree passed in the said Title Suit was a nullity. For the proper appreciation of the contentions of the learned Counsel for the parties it is desirable to set out the provision of Sections 213(1) and 227 of the Indian Succession Act.

Section 213 of the Indian Succession Act reads as follows :--

'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 tinder which the right is claimed, or has granted letters of administration with the will or with a copy of an authorised copy of the will annexed.'

Section 227 of the Indian Succession Act provides as follows:--

'227. 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'.

It appears from the provisions of Section 213(1) of the Indian Succession Act that an executor or a legatee cannot establish his right as a legatee without obtaining probate of the will in question but there is nothing to prevent the executor from dealing with the property of the deceased without obtaining probate because 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 the grant of probate is not a condition precedent to such vesting of estates in the executor and or his acting as executor. Section 227 of the Indian Succession Act lays down the effect of granting probate to a Will and it is provided that when a probate of a will is granted all intermediate acts of the executor from the date of death of the testator are rendered valid by the grant of probate.

5. Mr. Roy Choudhury contended that in view of the provisions of Section 213 of the Indian Succession Act an executor himself cannot obtain a decree as an executor in a suit instituted by such executor. But Section 213 of the Indian Succession Act does not debar the executor to be substituted in place and stead of the testator. Mr. Roy Choudhury contended that in the instant case the suit was instituted by the testator himself and after the death of the testator the legal representative was to be substituted. Since the estate of the deceased vested in the executor immediately on the death of the testator the executors were representatives of the deceased testator and as such the executors were entitled to be substituted in place and stead of the testator irrespective of the fact that the will was not probated. In this connection Mr. Roy Choudhury drew the attention of the Court to the provisions of Section 2(11) of the Code of Civil Procedure wherein it appears that the legal representative includes any person who intermediates with the estate of the deceased. Mr. Roy Choudhury contended that as the executors had been dealing with the estate of the deceased on the strength of the will, the executors were obviously legal representatives within the meaning of Sec. 2(11) of the Code of Civil Procedure and as such the trial court was quite justified in substituting the executors as the legal representatives of the deceased. Mr. Roy Choudhury contended that in such circumstances thedecree passed in favour of the executors substituted as plaintiffs for being the legal representatives of the deceased plaintiff was not a nullity and the learned Munsif was quite justified in holding that the execution proceeding was maintainable. Mr. Roy Choudhury further contended that even assuming that the said executors could not have been substituted in place and stead of the deceased testator so long the will was not probated, the decree passed in favour of the executors could not hold to be a nullity. Mr. Roy Choudhury contended that an application for substitution was made by the said executors after the death of the testator and such substitution was allowed by the Court. If no objection is taken for such substitution of the executors in the said Title Suit, the judgment-debtor is precluded from raising any objection in the execution proceeding. For this contention Mr. Roy Choudhury referred to a decision of the Privy Council made in the case of Raja Rajeswara Dorai v. Sundara Pandiyaswami Tevar, reported in AIR 1918 PC 156.

It was held in the said decision that when objection as to the proper representation was not taken in the courts below under the provisions of Order 22, Rule 5 of the Code of Civil Procedure the Privy Council should not entertain such objection. Mr. Roy Choudhury also referred to a Full Bench decision of the Travancore and Cochin High Court made in the case of Chacko Pyli v. Iype Varghese, reported in AIR 1956 Trav Co. 147. It was reported in the said decision that Rule 5 of Order 22 of the Code of Civil Procedure empowers the Court to determine as to who is the legal representative of the deceased. When a question arises, the Court's order, though it turns out to be erroneous, would operate and confer jurisdiction upon the Court to continue the proceeding with the legal representative as found by it on the record to represent the estate of the deceased. Relying on the said decision Mr. Roy Chowdhury contended that in the instant case, admittedly, the executors were substituted as the legal representatives of the said deceased and even assuming that for want of grant of probate the said executors could not lawfully represent the estate of the deceased the order of substitution made by the Trial Court was quite legal and valid and it must be held that the decree could be passed in favour of the said executors representing the estate of the deceased. Mr. RoyChowdhury also referred to another decision made in the case of Dinamoni Chaudhurani v. Elahadut Khan, reported in (1904) 8 Cal WN 843. It has been held in the said decision that where there is an executor or administrator, such executor or administrator is the legal representative of a deceased judgment-debtor. It was also held in the said decision that if a person is in de facto possession of the estate of the deceased without any title as administrator, executor, heir or reversioner, such person in de facto possession may also be treated for some purposes as the representative of the deceased and a judgment obtained against such a representative is not a mere nullity. Mr. Roy Choudhury contended that the executors in the instant case were the legal representatives irrespective of the grant of probate in their favour and although such executors could not establish their right as executors until the grant of probate, they being the legal representatives of the deceased testator could represent the estate of the deceased testator and as such could be substituted in place and stead of the deceased testator and a decree passed in favour of such legal representative cannot be held to be a nullity. Accordingly, Mr. Roy Choudhury contended that the suit in question not having been instituted by the executors for establishing their right as executors to the estate of the deceased testator, the decree passed in favour of such executors since substituted in place of the deceased plaintiff as his legal representatives, is not a nullity and the provisions of Section 213 of the Indian Succession Act does not create any bar for continuance of such suit by the executors in the capacity of a legal representatives.

6. Mr. Ghosh, the learned Counsel appearing for the judgment-debtor respondent, however, contended that an executor obtains his right to the estate of the deceased by virtue of the will but Section 213 of the Indian Succession Act debars the Court to pass any decree in favour of any person claiming to be an executor when there is no certificate of the grant of probate of the will in question. Mr. Ghosh contended that in the instant suit the executors were impleaded in the capacity of the executors to the will and naturally such executors asserted their right to the estate of the deceased testator by virtue of being executors to the will of the testator. In such circumstances, any decree passed infavour of such executors before the grant of probate was in violation of provisions of Section 213 of the Indian Succession Act and accordingly, the decree was nullity and the execution proceeding was, therefore, not maintainable. Mr. Ghosh contended that an executor is entitled to institute a suit before the probate is granted but his right as executor cannot be established in any court of law until the probate is granted and as such a decree cannot be passed in favour of an executor claiming right and title to the property in question as executor before a probate is granted. Mr. Ghosh referred to the decision of the Supreme Court made in the case of Mrs. Hem Nalini Judah v. Mrs. Isolyne Sarojbhashini Bose reported in : AIR1962SC1471 . It was held by the Supreme Court 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. 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 claimed has resulted in the grant of a probate or letters of administration. Mr. Ghosh contended that the decree-holders asserted their right in the suit as executors and wanted to obtain a decree in their favour as executors but under the provisions of Section 213 of the Indian Succession Act they were not entitled to establish their right as executors so long the probate of the will was not granted. Mr. Ghosh also contended that although the decree was passed in favour of the said executors contrary to the provisions of Section 213 of the Indian Succession Act such purported decree was a nullity. The judgment and decree passed in favour of the executors were only purported judgment and decree and were not real judgment and decree in accordance with law. Accordingly, the executing court had jurisdiction to go behind the decree and to see whether the decree was a real decree or a purported decree. For this contention Mr. Ghosh referred to the decision of the Supreme Court made in the case of Union of India v. Tarachand Gupta & Bros., reported in : 1983(13)ELT1456(SC) . In the said case there was no compliance of the relevant provisions in respect of Entry 295 under the Imports and Exports (Control) Act, 1947 and an adjudication was made under the provisions of Section 181 of the Sea Customs Act. The Supreme Court held that a decision and order under Section 181 of the Sea Customs Act must mean a real and not purported determination by flaking into consideration factors which the customs officer had no right to do. In such circumstances the decision made by the customs department was only a purported decision and the Civil Court, in such circumstances, had jurisdiction to decide the propriety and correctness of the adjudication made by the Sea Customs Authority. The Supreme Court held in the said case that jurisdiction has both narrow and wider meanings. The determination by a tribunal a question, other than which a statute directs, will be a decision not under the provisions of the Act and therefore, such decision becomes a decision in excess of the jurisdiction conferred on the tribunal. Relying on the said decision Mr. Ghosh contended that the trial court in the said title suit had no jurisdiction to pass the decree in favour of the said executors before the grant of probate and the trial court acted without jurisdiction in passing the said decree and as a result the decree became a nullity. In reply to the said contention of Mr. Ghosh, Mr. Roy Choudhury contended that in the instant case the suit was not instituted by the executors for establishing their right as executors but the suit was instituted by the testator himself against a third person and the executors being in possession of the property of the deceased testator under the said Will applied for being substituted as the legal representatives of the said deceased testator and they were substituted in place and stead of the deceased testator. Hence, it cannot be contended that in the facts of the case, the executors had instituted a suit for declaration of their title as executors and without the grant of probate such title to the estate was declared by the trial court in contravention of the provisions of Section 213 of the Indian Succession Act. Mr. Roy Choudhury also referred to the Chitley's Commentaries on Civil Procedure, Volume III, p. 1352 and submitted that for institution of a suit a cause of action must be in favour of a person instituting the suit. For a legal representative cause of action is not the cause of action of the legal representative, but the cause of action of the person bringing the action initially.

The legal representative has only right to continue the proceeding representing the interest of the original person. Mr. Roy Choudhury submitted that in the instant case the original testator instituted a suit on a cause of action available to him and the testators did not assert any right as executors for bringing the said suit but the said executors only claimed to continue as legal representatives in the suit instituted by the testator and in such circumstances, the decree is not a nullity.

7. After hearing the learned counsel appearing for the parties it appears to me that the decree passed in the instant case is not a nullity and I am inclined to accept the contentions raised by Roy Choudhury. The suit was not instituted by the executors for establishing their right as executors to the estate of a deceased but the suit was instituted by the testator himself on a cause of action available to him and the executors being in possession of the property of the testator by virtue of the said will were legal representatives within the meaning of Section 2(11) of the Code of Civil Procedure and although the will was not probated, they were entitled to be substituted and as a matter of fact were substituted as representatives of the deceased plaintiff and the decree passed in favour of such legal representatives of the original plaintiff cannot be held to be a nullity.

8. In the circumstances, this appeal is allowed and the impugned judgment dated 25th of March 1976 passed by the learned Additional District Judge, 2nd Court, Alipore, is set aside and order No. 35, dated 31st of March, 1975 passed by the learned Munsiff, 1st Court at Sealdah is affirmed. But in the facts and circumstances of this case, there will be no order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //