Orissa High Court
Pramodinipattnaik Since Dead ... vs Smt Jayashree Tarai And Another on 11 December, 2015
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
HIGH COURT OF ORISSA: CUTTACK.
Misc. Case No. 242 of 2013
(Arising out of RFA No.230 of 2009)
In the matter of an application under Order 22 Rule 3 read
with Rules 10 and 11 of the Code of Civil Procedure, 1908.
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PramodiniPattnaik
(since dead) ...... Petitioner/
Appellant
-Versus-
Smt. Jayashree Tarai
& another ...... Opp. Parties/
Respondents
AND
Ramakanta Mohanty ...... Petitioner
For Petitioner/ : M/s A.R. Dash, R.N.Behera,
appellant P.K.Behera, S.N.Sahu &
K.S.Sahu
For Opp. Parties/ : M/s N.C.Pati & B.Das
Respondents (For R-1)
Mr. Nigamananda Das
(For R-2)
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Date of Order: 11.12.2015
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PRESENT:
THE HONOURABLE SHRI JUSTICE K.R. MOHAPATRA
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K.R. Mohapatra,J This is an application under Order 22 Rules 3, 10 and
11 of CPC filed by one Ramakanta Mohanty, son of Adaita
Charan Mohanty praying, inter alia, to be substituted in place
of deceased appellant, namely, Promodini Pattnaik.
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2. The petitioner inter alia contended that the sole
appellant, namely, Pramodini Pattnaik died on 05.05.2013.
Before her death, she had executed a registered Will on
24.10.2005in favour of the petitioner (Ramakanta) as executor of the Will. Thus, he is the legal representative of the deceased appellant and right to sue and to be sued survives with him. He is entitled to continue the appeal. Accordingly, he seeks leave of this Court to be substituted in place of sole deceased appellant and to prosecute the appeal.
3. Respondents 1 and 2 filed two separate counter affidavits objecting prayer of the petitioner.
Respondent No.1 in his counter affidavit challenged the genuineness of the Will on various grounds. He further stated that respondent No.2 is the adopted son of the sole deceased appellant and has no conflicting interest with that of the appellant. Thus, it is highly improbable to believe that the deceased appellant has executed the Will in favour of petitioner- Ramakanta Mohanty, who is none other than the brother of respondent No.2. He further submitted that the proceeding for probate of the Will being pending before the competent court of law, the prayer of the petitioner should not be entertained. Thus, he prayed for dismissal of the petition.
Respondent No.2, in his counter affidavit, denied the contentions raised in the petition. It is contented inter alia that the petition filed by Ramakanta Mohanty is not maintainable. 3 Respondent No.2 has also filed an application to transpose as appellant to prosecute the appeal as he is the only legal heir of the deceased appellant and has no conflicting interest with that of the appellant. Though he admitted the date of death of the sole appellant, but strongly refuted the Will alleging it to be a forged one. He also submitted that no right will accrue in favour of said Ramakanta Mohanty unless the Will is probated by competent court of law. Thus, he prayed for dismissal of the petition.
4. Respondent No.2 had, in fact, filed an application as Misc. Case No.45 of 2014 to be transposed as appellant. Subsequently, when the matter was taken up on 30.11.2015, he did not press the application and accordingly Misc. Case No.45 of 2014 was dismissed as not pressed.
5. Mr.A.R.Dash, learned counsel for the appellant referring to the provisions of Section 211 of the Indian Succession Act, 1925 (for short, 'the Act') submitted that Ramakanta Mohanty being the executor of the registered Will dated 24.10.2005 executed by the sole deceased appellant, is her legal representative for all purposes and is entitled to continue this appeal as right to sue survives with him. He further submitted that respondent No.2, who is the adopted son of the deceased appellant, does not press this application to be transposed as appellant. Thus, it is essential for the petitioner to be substituted in place of the deceased appellant to keep litigation alive and continue the appeal.
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6. Mr.N.C.Pati, learned counsel for respondent No.1, on the other hand refuting the contentions raised by Mr.Dash submitted that Section 211 of the Act should not be read in isolation. A conjoint reading of Sections 211 and 213 of the Act makes it abundantly clear that no right of an executor or a legatee can be established in any court of justice unless the Court of competent jurisdiction grants a probate or a letter of administration of the Will executed by the deceased appellant. The Will in question being suspicious in nature no right can accrue to the petitioner (the executor) unless probate is granted. In fact, a probate proceeding in respect of the Will in question is pending before the competent Court of law. Thus, the appeal should stand abated till probate of the Will is granted in favour of the executor-petitioner. Thus, he prayed that the petition filed is premature and cannot be considered at this stage. He also submitted that no enquiry as required under Rule 5 of Order 22, CPC having been made the petition is not maintainable and hence the same is liable to be dismissed.
Section 211 of the Indian Succession Act, 1925 is extracted here under for better appreciation of the case:-
"211. Character and property of executor or administrator.-- (1) The executor or administrator, as the case may be, of a deceased person is his legal representative for all purposes, 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 5 contained shall vest in an executor or administrator any property of the deceased person which would otherwise have passed by survivorship of some other person."
Section 211 thus postulates the executor or administrator, as the case may be, of a deceased person, is his 'legal representative' for all purposes with regard to property covered under the testament, i.e., the Will. However, Section 213 of the Act makes it clear that no right as executor or legatee can be established in any Court of justice unless a Court of competent jurisdiction in India grants probate of the Will under which the right is claimed by the executor or the legatee. Section 2(11) of the CPC defines 'legal representative' as follows:-
"2(11) "Legal Representative" means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued;"
It emanates from the definition that legal representative is a person, who in law represents the estate of a deceased person and includes any person who intermeddles with the estate of the deceased. From the provisions of law as discussed above, it is to be seen as to whether the petitioner, who is undisputedly the executor of the Will dated 24.10.2005, can be treated to be the legal representative of the sole deceased appellant. It leaves no room for doubt that the legal representative is only entitled to continue the suit or appeal, as the case may be, on the basis 6 of the claim laid by the deceased plaintiff and/or appellant. He is not entitled to plead contrary and obtain reliefs which the plaintiff himself/herself is not entitled to. He is also not entitled to claim independent title of his own in respect of the property contrary to what had been claimed in the suit. He only represents the estate of the deceased [See 51 (1981) CLT 42].
Thus, the term 'legal representative', as appears in Section 211 of the Act, cannot be given a different meaning. It is also not in conflict with the meaning as defined in Section 2(11) of CPC. All the properties of the testator covered under the testament vests with the executor, but the same does not give any right to him to establish his independent right over the property unless a probate or letter of administration, as required under Section 213 of the Act, is granted in his favour. He being an executor is only entitled to protect the estate and to continue the litigation.
Mr.Dash placed reliance upon a decision of the Patna High Court in the case of Ramcharan Singh Vs. Mst. Dharohar Kuer, reported in AIR 1954 Pat, 175, wherein, at paragraph 8, it has been held as under:-
"12. It is Section 211 and not Section 213, which deals, with the vesting of the property of a deceased person, and it says, without any specification as to time, that the executor or the administrator, as the case may be, is the legal representative of the deceased for all purposes and the property of the deceased person vests in him as such. The corresponding provisions in the former statutes, namely, the Indian Succession Act, 1865, and the Probate and Administration Act, 7 1881, were contained in the Chapter of those Acts dealing with the grant of probate and letters of administration. This fact was relied on in some reported decisions as an argument supporting the proposition that the vesting in the executor occurs when probate is granted. Section 211, however, occurs in Part 8 of the Act entitled "Representative Title to Property of Deceased", while Part 9 deals with Probate, Letters of Administration and Administration of Assets of the Deceased." This argument is, therefore, no longer available. On the terms of Section 211 there is no reason to limit the vesting of the property in the executor in the manner contended for. The section being in general terms which speaks of the property as vesting in the executor or the administrator "as such", the vesting would occur as soon as there is an individual answering to the description of an executor or administrator as the case may be. This happens in the case of an administrator when he is appointed by a competent authority and in the case of the executor when the testator dies. Had it been intended that the vesting of property in the executor would be dependent on the grant of probate the necessary provision would have been made in the statute as was done by Section 220 relating to letters of administration in cases of intestacy. This section is in strong contrast to Section 213 dealing as it does with rights, whereas Section 213 deals with evidence. The reason for this difference is that in the case of succession under a will Section 211 had already provided for the vesting of the property of the deceased....."
Relying upon the aforesaid decision, this Court in the case of Surendra Chandra Jena And Ors. vs Laxminarayan Jena and Ors., reported in AIR 1988 Ori 143 in paragraph 4 has held as follows:-
"4. Apart from the above fact, Section 211 of the Act makes a special provision. According to this provision, the executor or administrator, 8 as the case may be, of a deceased person is his legal representative for all purposes, and all the property of the deceased person vests in him as such. According to the scheme of the above provision of the Act, the executor is not required to wait for the grant of the probate but can ipso facto being the legal representative prosecute the lis in view of the devolution of the interest under Order 22, Rule 10 of the Civil P.C. inasmuch as the testator's title stands vested in the executor on the his death...."
In a reported decision of this Court in the case of Kannhialal Sarda and another Vs. State of Orissa and others, AIR 1980 ORISSA 27, in paragraph 9 of which it has been held as follows:-
"9. It is contended on behalf of the petitioner in these two writ petitions that the petitioner, in his capacity as the executor of Baijnath's will, is the legal representative of Baijnath for all intents and purposes as soon as Baijnath died, and all the properties of Baijnath vested on the petitioner on the death of the former as provided under Section 211 of the Succession Act, and the petitioner's right to possess and manage the property has already accrued to him on the death of the testator and the vesting of that right is not postponed till the grant of the probate by the court, and that being so, the State should renew the mining leases in his favour without waiting for the grant of probate of the said will. The proposition of law contained in the above submission, even if true, cannot enable the petitioner to obtain the direction asked for from this Court, as a Court of Justice cannot come to his aid unless probate of the will is granted in his favour. As discussed above Section 213 of the Act lays down a peremptory rule of law, and the petitioner, cannot obtain the aid of this Court to establish his right as the executor under the alleged will so long he is not able to produce the probate of the will before this Court. Of course the want 9 of a probate may not affect his right as the executor under the will, but if he seeks the aid of any court of law to establish any of the rights of an executor under the will, the court will not come to his aid till he does not produce the probate of the will...."
Thus, from the discussions made in the aforesaid reported decisions and the law laid down therein, it is crystal clear that an executor can only represent and continue the litigation on behalf of the testator, but he cannot claim/establish his independent right over the property covered under the Will/testament unless the probate or letter of administration is granted in his favour by a competent court of law.
7. In that view of the matter, the petition is allowed. Sri Ramakanta Mohanty is permitted to be substituted in place of the sole deceased appellant. Consolidated cause title shall be filed within a week.
Issue urgent certified copy of the order on proper application.
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K.R. Mohapatra, J.
Orissa High Court, Cuttack.
Dated the 11th December, 2015/bks/ss