Calcutta High Court (Appellete Side)
Rajashree Ray Bandyopadhyay vs Partha Sarathi Roy on 29 July, 2025
Ct. No.446 D/L
Saikat 05 29.07.2025
CO/776/2021
RAJASHREE RAY BANDYOPADHYAY
VS
PARTHA SARATHI ROY
Mr. Surajit Nath Mitra, Sr. Adv.
Mr. Sarbajit Mukherjee, Adv.
Mr. Sayantan Bose, Adv.
Ms. Priyanka Gope, Adv.
...For the Petitioner
Mr. Sourabh Guhathakurata, Adv.
Mr. Abhratanu Sarkar, Adv.
Mr. Partho Proteam Das, Adv.
...For the Respondent
1. This application under Article 227 of the Constitution of India has been filed challenging the order dated 6th March, 2020 passed by the learned Civil Judge, Senior Division, 2nd Court, Barasat in Title Suit No.669 of 2017 allowing the application filed by the Defendant No.2 for substitution.
2. The case of the petitioner is that a suit for declaration of title and permanent injunction and accounts was filed by the mother of the present petitioner and respondent in respect of the three storeyed building in Plot No.1, Block-DB, Sector-I, Salt Lake City, District 24-Parganas (North).
3. The prayers of the said suit were for declaration of joint ownership to the extent of ½ + 1/3 in respect of the suit property along with the permanent injunction from creating any disturbance in peaceful joint and 2 ejmal possession of the suit property and also to render accounts of the rentals/licence fee collected by the petitioner herein from the 1st floor tenant.
4. The present petitioner entered appearance and filed the written statement after receiving summons of the said suit and after denying all the material allegations in the plaint filed a counter Claim with the prayer for decree of declaration of undivided 1/2 share in respect of the suit property after getting the grant of probate from the 3rd Additional District Judge, Barasat.
5. During the pendency of the suit, the plaintiff, that is mother of the parties died on 6th October, 2018. After that, the respondent/proforma defendant filed an application for substitution stating that the sole plaintiff, that is Dr. Urmila Ray bequeathed all her movable and immovable property in favour of the opposite party/proforma defendant by virtue of a Will dated 22nd May, 2017, whereby the present petitioner has been appointed as an executor thereof. He accordingly, prayed to be transposed in place of deceased plaintiff by way of substitution. The petitioner filed the written objection to the extent that according to the Hindu Succession Act, after demise of the deceased plaintiff the right, title and interest would devolve upon her legal heirs and both the defendants are equally entitled to the subject-matter of the suit.
3
6. The petitioner also filed an application on 7th December, 2018, under Order 22 Rule 3 of the Code of Civil Procedure for transposition of plaintiff from defendant and prayed for substitution as well as transposition as plaintiff from defendant side. That application was also contested by the opposite party/proforma defendant by filing written objection before the learned court and after hearing the parties the learned court rejected the application filed by the present petitioner on 7th December, 2018 and allowed the application dated 10th October, 2018, filed by the respondent/proforma defendant herein.
7. Mr. Mitra, the learned senior counsel appearing on behalf of the petitioner submits that the order of challenge in this revisional application is the application for substitution as filed by defendant No.2 which has been allowed on contest. It is submitted that the application specifically reflects about substitution in place of the plaintiff mother when both the parties are the legal heirs of the said deceased mother and are entitled to be transposed in the category of the plaintiff. It is further argued that the learned court erred in arriving at the opinion that in terms of Section 211(1) of Indian Succession Act Defendant No.2 being the executor of the deceased plaintiff for all purposes and thereby allowed the prayer of the defendant No.2 when the application was absolutely silent in this regard. Further 4 argument advanced on behalf of the learned senior counsel that had the application been filed for transposing in the capacity of an executor in terms of the Will, as alleged the present petitioner, could have taken appropriate steps since the present petitioner is also an executor in terms of the Will executed by the father in respect of the suit property. It is further submitted that nowhere in the four corner of the petition the petitioner asserted that he accepted the office of the executor which is mandatory and in this regard, the learned senior advocate relied upon a decision passed in Sri Raja Kakarlapudi Venkata Sudarsana Sundara Narasayyamma Garu (died) and Ors. vs. Andhra Bank Ltd., Vijayawada & Ors. reported in AIR 1960 Andhra Pradesh 273.
8. The learned advocate appearing on behalf of the opposite party, on the other hand, strenuously argued that the learned court was absolutely right in allowing the prayer of the defendant No.2 considering the provision of Section 211(1) of the Indian Succession Act as he is the executor appointed in respect of the Will executed by the mother, that is the original plaintiff. It is further submitted that the present petitioner duly filed the written objection which was also considered by the learned court while passing the order. It is settled law that the entire property vests upon the executor immediately after demise of the testatrix.
5
9. Having heard the learned senior advocate appearing for the petitioner and the learned advocate appearing for the respondent/proforma defendant and on careful perusal of the case record it transpires that the suit was filed by Dr. Urmila Ray against her daughter with a prayer for declaration of plaintiff for joint ownership in respect of the suit property where the present respondent was the proforma defendant. The specific prayer was made against the principal defendant to restrain her permanently from creating any disturbance in peaceful joint and ejmal property in the petition filed on behalf of the present respondent. After demise of the mother on 6th October, 2018, the respondent filed the application to transpose him from the proforma defendant to plaintiff and in the petition it was averred that she executed holographic Will on 22nd May, 2017, whereby the petitioner was appointed as executor thereof. He also annexed the copy of the Will along with the said petition. He further mentioned that in the suit the petitioner was arrayed in the category of proforma defendant No.2 who is the son of the deceased plaintiff. Accordingly, prayed for transposition from the category of proforma defendant No.2 to the category of plaintiff by way of substitution of the original plaintiff.
10. By filing the written objection the present petition denied the prayer and disclosed about existence of 6 another Will in favour of her. It is clear from the pleadings of both the parties that the property was in the joint name of the parents of the parties and in respect of the said property two Wills were executed an executor and executrix respectively in the Wills executed by their parents separately.
11. Section 211 of Indian Succession Act reads as follows:-
"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 purpose, and all the property of the deceased person vests in him as such.
(2) When the deceased was a Hindu, Muhammadan, Buddhist, [Sikh, Jaina or Parsi] or an exempted person, nothing 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."
12. The Division Bench of Andhra Pradesh High Court in the case of Sri Raja Kakarlapudi Venkata Sudarsana Sundara Narasayyamma Garu (died) and Ors. vs. Andhra Bank Ltd., Vijayawada & Ors. (supra) as relied upon by the learned senior advocate reiterated the said provision and further observed:
"Even before obtaining of the probate on the death of the testator, the property vests in the executor as such. It is not section 213 which deals with the vesting of the property of the deceased persons but section 211. All that the grant of the probate does is not to give the executor title but only to make his title certain. This will of course depend upon the fact whether the plaintiff has accepted the office as an executor."7
13. I am unable to accept the contention of the learned senior advocate that the respondent has failed to show that executor has accepted the office as he never asserted that in his application as in this case it is clear that both the parties have filed the application for grant of probate in respect of the wills as executed by their parents. It is undisputed that the petition was silent about filing of any probate but the question at this stage falls for consideration as to whether for not asserting the filing probate application by the executor or for using the word substitution in the application can take away the right of the executor whereby the entire property of the deceased vests immediately on the death of the testator/testatrix in view of section 211 of the Indian Succession Act. It is also a settled law that while the property vests upon the executor he becomes legal representative in respect of the deceased person for all purposes and according to the relevant procedure of the Code of Civil Procedure is entitled to represent the deceased whereof any proceeding was pending at the instance of the deceased testatrix. It is also a settled law that mere mentioning of wrong provision would not vitiate the entire case and would not affect the merit of the case.
14. Therefore, from the above facts and circumstances and the legal position, this court finds no irregularities in the order impugned and/or any reason to interfere 8 with. It is also a settled law that the executor being transposed in the category of the plaintiff will try to protect the properties of the deceased and will take remedial measures with the leave of the court as and when it is necessary for the interest and protection of the property and it is the mandate of law that even though an executor represents the deceased in a Civil proceeding, he cannot establish any right in a court of justice unless the probate is granted in respect of the will whereby the executor has been appointed.
15. Hence, there is no merit in the revisional application and the same stands dismissed.
16. The order passed by the learned court below is hereby affirmed.
17. No order as to costs.
18. Urgent Photostat certified copy of this order, if applied for, be given to the parties, on priority basis, upon compliance of all necessary formalities.
[Chaitali Chatterjee (Das), J.]