Calcutta High Court
Smt. Durga Dutt & Anr vs Hemraj Surana & Anr on 14 July, 2010
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
GA No. 1967 of 2010
EOS No. 6 of 2004
IN THE HIGH COURT AT CALCUTTA
Extra-Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
SMT. DURGA DUTT & ANR.
Versus
HEMRAJ SURANA & ANR.
Appearance
Mr. Abhrajit Mitra, Advocate
Mr. Priyankar Saha, Advocate
Mr. Hiranmay Bhattacharya, Advocate
Mr. Mrinal Kanti Ghosh, Advocate
Mr. G.S. Gupta, Advocate
BEFORE:
The Hon'ble JUSTICE SANJIB BANERJEE
Date : 14th July, 2010.
The Court : Several judgments have been cited on a question of
law which appears to have been well settled many decades back. But since
the judgements have been cited they have to be noticed and the law, in a
sense, rediscovered.
The executor of an alleged Will has applied to be substituted in
place and stead of the deceased first plaintiff. The application is opposed
by the defendants. The challenge in the suit is to the execution and validity
of a deed of conveyance or like document. The original first plaintiff
claimed to be the owner of the immovable property and the second plaintiff
was the holder of the power of attorney on behalf of the first plaintiff. The
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execution of the relevant document has been questioned and that is the
principal relief claimed in the suit.
The present application is by the grandson of the deceased first
plaintiff seeking to be substituted in place and stead of the deceased first
plaintiff as the executor of her Will. The second plaintiff does not oppose
the prayer. It does not appear that there is any difference of opinion
between the applicant and the second plaintiff though the applicant claims
that the applicant is the sole legatee of the entire estate of the deceased
first plaintiff under the Will that has been set up. An application for grant
of probate is pending in the City Civil Court.
The defendants refer to a judgment reported at 1995 (Supp.) 1
SCC 312 to assert that the question has been conclusively answered by a
three-Judge Bench of the Supreme Court, that in view of Section 213 of
the Succession Act, 1925, an executor cannot claim to be substituted in
place and stead of a deceased party where the right to sue or be sued
survives. It is necesssary that paragraph 2 of the report be noticed in the
context, since the relevant sentence is coined in absolute terms and would
give an impression that Section 213, indeed, precludes an executor from
being substituted in place and stead of a deceased party where the right to
sue or be sued survives :-
"2. After filing of the special leave petition the appellant
died on 15-4-1988. The 9th respondent has filed IA No. 1
of 1989 for being substituted as the appellant in place of 3 the original appellant. In the said application which is under Order 22 Rule 3 of the Code of Civil Procedure read with relevant rules of this Court, the 9th respondent has stated that the deceased-appellant has left a Will under which Respondent 9 is the sole executor of the Will. Under the said Will the appellant has left his entire estate to Respondent 6 i.e. his second wife. Respondent 9 has, therefore, prayed that he should be impleaded in his capacity as the executor of the Will of the deceased- appellant and as his legal representative. The Will, however, has not been probated so far. In view of Section 213 of the Indian Succession Act, Respondent 9 cannot, therefore be, impleaded in his capacity as the executor of the Will of the deceased-appellant. It is, however, an accepted position that the legal representatives of the original appellant are already on record. We, therefore, do not see any difficulty in transposing Respondent 9, one of the legal representatives of the deceased-appellant, as the appellant. For the sake of convenience, however, the original appellant will be hereafter referred to as the appellant and the transposed appellant will be referred to as Respondent 9."
The defendants submit that the position is clear from two judgments of this Court reported at (1979) 2 Cal.LJ 426 and (1988) 1 Cal.LJ 38. The defendants submit that even if the substitution as sought is granted, the trial of the suit cannot be concluded till the probate is granted. The defendants are right on such aspect.
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The applicant relies on the judgment reported at AIR 1962 SC 1471 and the consistent acceptance of the principle enunciated therein in subsequent judgments of various Courts. The applicant refers to judgments of this Court reported at AIR 2001 Cal 122 and AIR 1980 Cal 117, a judgment of the Bombay High Court reported at AIR 2001 Bom 224 and recent Supreme Court judgments reported at AIR 2006 SC 2263 and AIR 2010 SC 344. The principle is plain to see from such judgments and there is no doubt that the consistent view of all Courts, including the Supreme Court, has been that Section 213 of the Succession Act does not prohibit a claim to be made by the executor but the claim cannot be established till such time that the probate of the Will is granted. As a corollary, an executor may be substituted in place of the testator in any proceedings where the right to sue or be sued survives, but the proceedings cannot be concluded before the probate of the Will is granted.
The applicant submits that the relevant observation in 1995 (Supp.) 1 SCC 312 is only an obiter dictum and is not the ratio decidendi of the judgment. The applicant says that though an obiter of the Supreme Court may be binding, if there is a ratio which is pitted against an obiter of the same Court, it is the principle recognized in the ratio that would prevail notwithstanding a contrary opinion expressed in the obiter. In support of such contention, the applicant relies on a judgment reported at 1993 Cr.L.J. 1209.
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The defendants say that the principal judgment cited by the applicant, that of AIR 2006 SC 2263, was on an entirely different issue and not on the question as to whether an executor had a right to be substituted in place of the testator as a party to the proceedings. The defendants say that the issue in such matter was as to whether, after the substitution of the executor in place and stead of the testator, the suit could immediately proceed to trial and conclusion without awaiting the grant of the probate.
A judgment is binding for the reasons that the judgment discloses in support of any legal principle. In the judgment reported at 1995 (Supp.) 1 SCC 312, notwithstanding the relevant sentence implying that Section 213 was a bar to an executor being substituted in place and stead of the testator, it is evident that the matter was not considered at length by the Supreme Court. The matter was not required to be considered in greater detail since the executor was already a party to the proceedings before the Supreme Court as the ninth respondent therein and the Supreme Court deemed it appropriate to otherwise transpose the ninth respondent as the appellant in the proceedings without really going into the question as to whether the ninth respondent as executor of the Will of the petitioner had an independent legal right to be substituted as appellant in place of the deceased original appellant. 6
The proposition has been settled for decades and the principle recognized in AIR 1962 SC 1471 has reverberated in Courts throughout the country including in the recent judgments that have been cited. By virtue of the Will, the executor represents the estate of the testator immediately upon the death of the testator. Such right is not suspended till such time that a probate is granted of the relevant Will. Such right accrues immediately upon the death of the testator. However, the grant of probate is the legal recognition of such right and the grant is not the right by itself. The grant or the legal recognition of the validity of the Will embodied therein relates back to the time of the death of the testator and acknowledges the right of the executor to represent the estate of the testator immediately upon the death of the testator.
Though several questions have been raised by the defendants which may be of some legal interest, these matters do not arise in the present proceedings. For instance, the defendants say that if there is a clash of interest between the executor and the natural heirs and there is serious contest to the application for grant of probate, then the substitution of the executor in place and stead of the original party would prejudice the rights of the natural heirs in the event the probate is not granted.
It is precisely for such reason that notwithstanding the substitution of a party to proceedings by the executor of the alleged Will of 7 such deceased party, the proceedings are not concluded till such time that the probate is obtained by the substituted party.
In the present case there is no conflict of interest between the applicant son and the second plaintiff father. The suit would, in any event, not abate since the second plaintiff as a natural heir of the first plaintiff is already on record. However, the applicant desires to be substituted in place of the first plaintiff and the defendants in this case do not really have any right to object thereto except to insist that the suit cannot be concluded if substitution is effected in favour of the applicant, till such time that the applicant produces a probate of the alleged Will of the deceased first plaintiff.
Accordingly, there will be an order in terms of prayers (a), (b),
(c), (d) and (e) of the Master's Summons of June 7, 2010. Necessary amendment and re-verification should also be completed within a period of a fortnight from the date of the applicant's receipt of an authenticated copy of this order.
G.A. No. 1967 of 2010 is allowed without any order as to costs. Urgent certified photocopies of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(SANJIB BANERJEE, J.) sg.