1. The facts which gave rise to these two appeals are as follows:
2. One Ramsundar executed a mortgage bond in favour of Udaychandra Das borrowing Rs. 250 with interest at the rate of 2 per cent per month. There was also a stipulation for compound interest. On 15th November 1928, Uday's son, Mahendra, the sole appellant in S.A. 184 of 1933 and one of the appellants in M.A. 477 of 1932, instituted a suit on the mortgage-bond against the heirs of Ramsundar for recovery of Rs. 1,200 as executor to the will left by his father Uday after the death of Uday. At the time of the institution of the suit Mahendra did not institute any proceeding for getting a probate of the will of his father.
3. During the pendency of the suit however he applied for probate and was appointed administrator pendente lite under Section 247, Succession Act. Thereafter he prosecuted the mortgage suit as administrator pendente lite and obtained a mortgage decree on 9th January 1931. The plaintiff's claim for a personal decree for realization of the balance, if any, that may remain unrealized from the sale proceeds, was however dismissed. Thereupon, the defendants filed an appeal to the lower appellate Court on 23rd March 1931, impleading the appellant, Mahendra, as the sole respondent in the appeal. The application for probate however was dismissed on 2nd April 1932 only on the ground that the appellant could not pay the probate duty. On 10th May 1932, an application was filed by the heirs of Uday for being substituted as respondents in place of Mahendra, on the ground that the probate of the will left by Uday was not taken out. This application was rejected by the lower appellate Court on 21st May 1932. On 27th May 1932, the heirs of Uday filed an application for staying the hearing of the appeal to enable them to file an appeal against the said order to this Court and to get an order for staying the hearing of the appeal from this Court. This application was however refused. The appeal was thereafter heard by the learned Judge and the suit was dismissed. M.A. 477 of 1932 is by the heirs of Uday against the order dated 21st May 1932 and S.A. 181 of 1933 is by Mahendra as executor, who has now ceased to be the administrator pendente lite, against the order dismissing the suit.
4. M.A. 477 of 1932.-From the facts stated above, it is clear that the interest in the subject-matter of the suit, that is the interest in the mortgage security, did not come to or devolve upon the heirs of Uday during the pendency of the appeal in the lower appellate Court. Consequently, the learned Judge was right in dismissing the application for substitution and addition of the heirs under Order 22, Rule 10, Civil P.C. This appeal is accordingly dismissed.
5. S.A. 184 of 1933.-It appears from the judgment of the lower appellate Court that the only point, which it decided, was whether the decree could be maintained by the appellant after he had ceased to be the administrator pendente lite. The learned Judge has observed:
Under Section 213, Succession Act, the plaintiff's right, as executor, could not be established till he was granted probate or letters of administration with a copy of the will annexed and, if he succeeded in obtaining a decree on the basis of a grant of letters of administration pendente lite, that decree must be regarded as conditional on the plaintiff finally obtaining probate of the will. When therefore his application for probate was allowed to be dismissed, the whole decree was liable to be set aside on that ground alone.
6. From the facts stated above, it is, clear that the appellant is the executor to the will of his father. There is no dispute about the genuineness of the will. The appellant failed to get the probate, because he could not pay the probate duty in time. He however obtained the decree in the trial Court as administrator pendente lite, as the application for probate was then pending. During the pendency of the appeal in the lower appellate Court, the appellant ceased to be the administrator pendente lite. But this fact cannot take away his right to proceed with the proceeding or to maintain the decree as an executor. The grant of a probate is not a condition precedent to the institution of the suit by the executor: see Chandra Kishore Roy v. Prasanna Kumari Dasi (1910) 38 Cal 327. There cannot be any doubt that the appellant had the right to institute the present suit as executor before he obtained the probate. Whether as executor he would be entitled to recover the decree or to maintain the same passed by the trial Court without producing the probate is an entirely different matter. It is well established on authorities that he will be entitled to get a decree, if he produces the probate before the passing of the final decree. In Menahim Yousef v. Islam Aman Satah 1931 Bom 547, Beaumont, C.J., observed as follows:
If the deceased mortgagee left a will... the defect can be cured by plaintiffs 3 to 6 (who are alleged to be and who sued as heirs and legal representatives of the deceased mortgagee) taking out probate and then proceeding with their action seeing that their title arises under the will and the only necessity for obtaining probate is to enable them to prove the will in the only manner which the Court recognizes.
7. The learned advocate for the appellant prayed before us for remanding this case to the lower appellate Court in order to enable his client to cure the defect by producing the probate before the matter is finally disposed of by the said Court. From what has been stated above it is clear that the learned Judge has not come to any decision on the merits of the case. He dismissed the suit only on the ground that the appellant before us could not maintain the decree as he had already ceased to be the administrator pendente lite. It has been already pointed out that the appellant is still entitled to prosecute the suit as executor and will be entitled to get a decree, if the lower appellate Court comes to a decision on the merits in his favour and if he produces the probate before the lower appellate Court at the time of the hearing of the appeal. We accordingly set aside the decree of the lower appellate Court and remand the case to that Court. If the plaintiff appellant produces the probate before the lower appellate Court within five months from this date, it will thereafter proceed to hear the appeal as well as the cross-objection on the merits and, if the findings of the said Court be in favour of the plaintiff, the suit will be decreed. If however the plaintiff fails to produce the probate within the time aforesaid, then the plaintiff's suit will stand dismissed with costs in the lower Courts. There will be no order for costs of both the appeals in this Court.