Orissa High Court
Subhransu Kumar Mohapatra vs Rukmuni Mohapatra on 23 September, 2024
ORISSA HIGH COURT : CUTTACK
CRP No.32 of 2022
In the matter of an Application under Section 115 of
the Code of Civil Procedure, 1908
***
Subhransu Kumar Mohapatra, Aged about 51 years, Son of Late Saroj Kumar Mohapatra, Resident of MIG 321, Kolathia, Satya Sai Enclave, Lane No.8, PO/PS:Khandagiri, Bhubaneswar, District: Khordha ... Petitioner (Defendant before the trial Court)
-VERSUS-
Rukmuni Mohapatra Aged about 47 years Wife of Soumendra Kumar Mohapatra At: Plot No.1588/1657 and 1615/1658/2935, Lane No.8, PO: Aerodrome Area PS: Air Field, Bhubaneswar District: Khordha ... Opposite party (Plaintiff before the trial Court) Counsel appeared for the parties:
For the Petitioner : M/s. Gopinath Mishra, Pragnya Paramita Mohanty and J.K. Pradhan, Advocates CRP No.32 of 2022 Page 1 of 65 For the Opposite party : M/s. Suvashish Pattnaik, Bishal Baivab, Soumya Priyadarshinee and A. Pattnaik, Advocates P R E S E N T:
HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN Date of Hearing : 10.09.2024 :: Date of Judgment : 23.09.2024 J UDGMENT MURAHARI SRI RAMAN, J.--
THE CHALLENGE:
Questioning the propriety of order dated 14.12.2022 of the Senior Civil Judge, Bhubaneswar in suit, bearing CS No.1601 of 2020, passed in consideration of a petition filed at the behest of the petitioner-defendant under Order XXII, Rule 3, of the Code of Civil Procedure, 1908 ("CPC", for short), this civil revision petition has been preferred invoking provisions of Section 115 with the following prayer(s):
"Therefore, it is prayed that the revision may be admitted, LCR may be called for and after hearing the parties, the same may be allowed by setting aside the impugned order dated 14.12.2022;
And for which act of kindness, the petitioner shall as in duty bound, ever pray."
THE FACTS:CRP No.32 of 2022 Page 2 of 65
2. The facts as outlined by the petitioner-defendant in the revision petition reveal that the original plaintiff-Sarojini Mohapatra (be called "deceased plaintiff" for convenience), being dead during the pendency of the suit for declaration of registered gift deed dated 24.11.2017 executed in favour of the petitioner (one of her sons) null and void and for permanent injunction, a petition under Order XXII, Rule 3 of the CPC came to be filed by her daughter-in-law (namely, Rukmani Mohapatra) for substitution in place of the deceased plaintiff-Sarojini Mohapatra (hereinafter called "substituted plaintiff") claiming her right under a Will to continue with the aforenoted suit to its logical end.
2.1. The petitioner herein, being defendant in the suit, stated to have objected to such substitution and raised question of maintainability of the petition under Order XXII, Rule 3 of the CPC on the plea that deceased plaintiff left legal heirs behind her, who did not choose to participate in the suit and contest. It is the contention of the petitioner that Rukmani Mohapatra (substituted plaintiff) being not a successor of the deceased plaintiff, the petition under Order XXII, Rule 3 of the CPC is not liable to be allowed inasmuch as no legal right by dint of Will flows unless a Court of competent jurisdiction grants probate of such Will under which the right is claimed, or the legatee is granted the letters of CRP No.32 of 2022 Page 3 of 65 administration with the Will or with a copy of an authenticated copy of the Will annexed thereto in terms of Section 213 of the Indian Succession Act, 1925.
HEARING OF THE CIVIL REVISION:
3. As no factual dispute arose but for involvement of question of law, whether in absence of probate of Will, taking aid of such Will can any right to sue by Rukmuni Mohapatra survives substituting her mother-in-law (deceased plaintiff) in the suit, on consent of the counsel for the parties, the matter is taken up for final hearing.
3.1. Heard Sri Gopinath Mishra, learned Advocate along with Ms. Pragnya Paramita Mohanty, learned Advocate appearing for the petitioner-defendant and Ms. Soumya Priyadarshinee, learned Advocate on behalf of Sri Suvashish Pattanaik, learned Advocate along with Sri Bishal Baivab, learned Advocate appearing for the opposite party.
3.2. Hearing being concluded on 10.09.2024, the matter is kept reserved for preparation of Judgment and delivery thereof.
ARGUMENTS OF COUNSEL FOR THE RESPECTIVE PARTIES:
4. Sri Gopinath Mishra, learned Advocate along with Ms. Pragnya Paramita Mohanty, learned Advocate appearing for the petitioner-defendant submitted that the Will CRP No.32 of 2022 Page 4 of 65 alleged to have been executed in favour of the opposite party-substituted plaintiff having not been probated nor do the letters of administration being allowed, no legal right flows automatically stemming on the Will to pursue the suit by stepping into the shoes of the deceased plaintiff. Placing reliance on Ground-B of the civil revision petition with support of provisions of Section 213 of the Indian Succession Act, 1925, the learned Advocate urged that on erroneous appreciation of law the learned Senior Civil Judge, Bhubaneswar allowed the petition for substitution filed by Rukmuni Mohapatra (daughter-in-law of the deceased plaintiff) inasmuch as neither there is devolution nor is the interest created in the suit schedule property, which had already got transferred with the execution of gift deed in favour of the petitioner, for no right accrues to the executor to step into the shoes of the testator unless and until the unregistered Will is probated.
4.1. It is also further urged by the learned counsel for the petitioner that though other legal heirs and successors of the deceased plaintiff are available, they have not come forward to substitute the deceased, Sarojini Mohapatra which presupposes the factum of transfer of title in the property in question in favour of the petitioner by virtue of gift deed executed by his mother Sarojini Mohapatra. Hence, the petition for substitution CRP No.32 of 2022 Page 5 of 65 at the behest of daughter-in-law (Rukmuni Mohapatra, opposite party) should not have been allowed by the learned trial Court. It is alleged that she by pursuing the suit seeks to grab the property in question which stands devolved in favour of the petitioner.
4.2. Sri Gopinath Mishra along with Ms. Pragnya Paramita Mohanty, learned counsel sought to impress upon this Court that Rukmuni Mohapatra, substituted plaintiff, is a stranger. Pressing Ground-D of the revision petition learned counsel submitted that the opposite party is an "interloper" inasmuch as the existing "legal heirs" did not take any interest to get themselves substituted to continue with the civil proceeding.
5. Ms. Soumya Priyadarshinee, learned Advocate appearing for the opposite party with her not only well-structured but also compellingly articulated argument opposed the contentions of Sri Gopinath Mishra, learned Advocate urged that the grounds and the contentions of the petitioner run contrary to settled legal position. Using persuasive language and citing relevant precedents she has effectively reinforced their position and demonstrated that being the executor under the Will, the testator's title vests on the death of Sarojini Mohapatra- deceased plaintiff. Therefore, stemming on the statutory provision contained in Section 211 of the Indian Succession Act, 1925, she fortified her stance that the CRP No.32 of 2022 Page 6 of 65 substituted plaintiff, namely Rukmuni Mohapatra, has every right to carry the civil proceeding in CS No.1601 of 2020 pending in the files of Senior Civil Judge, Bhubaneswar forward by way of recourse to Order XXII, Rule 3 of the CPC.
5.1. Ms. Soumya Priyadarshinee, learned Advocate with well-
researched precedents to counter viewpoint of Sri Gopinath Mishra, learned counsel for the petitioner, reinforced her stance that it is not the "legal heir" who can get substituted in place of deceased plaintiff, but it is also the "legal representative", defined under Section 2(11) of the CPC, who can get substituted for the deceased plaintiff. The suit schedule property being bequeathed in her favour during the life time of Sarojini Mohhapatra by a duly executed Will-- in contrast to the gift deed in favour of the petitioner, which the deceased plaintiff asserted in the suit to have been obtained by practising fraud-- the executor of the property, viz., the opposite party falls within the connotation of the term "legal representative".
5.2. Ms. Soumya Priyadarshinee, learned Advocate objecting to the arguments advanced by Sri Gopinath Mishra, learned Advocate, asserted that it would not be appropriate to have reference to Section 213 alone, rather the provisions of Section 211 of the Indian Succession Act, 1925 have to be taken into CRP No.32 of 2022 Page 7 of 65 consideration while deciding whether the opposite party can be treated to be "legal representative". It is, therefore, contended by learned Advocate for the opposite party that the learned Senior Civil Judge, Bhubaneswar is legally justified in allowing the petition under Order XXII, Rule 3 read with Section 2(11) of the CPC and directed substitution of the opposite party for deceased plaintiff in order to protect her interest created by virtue of the Will executed by Sarojini Mohapatra.
5.3. The counsel has submitted a suave presentation that effectively articulates the arguments in favor of the opposite party's position that in view of Section 211 read with Section 213 of the Indian Succession Act, there is no prohibition for legatee to continue with the suit in terms of Section 2(11) of the CPC as the original plaintiff- Sarojini Mohapatra has sought to declare the "registered gift deed dated 24.11.2017 executed by her in favour of this defendant-petitioner as null and void", which has unequivocally been admitted by the petitioner herein at paragraph 2 of the civil revision petition. Thus, she has laid emphasis on the concluding part of the impugned order dated 14.12.2022 passed by the learned Senior Civil Judge, Bhubaneswar, which reads as under:
"*** Apart from that it is clear from the plaint itself that there are sons and daughters of the deceased plaintiff other CRP No.32 of 2022 Page 8 of 65 than the defendant. However, one of such natural heirs of the deceased plaintiff, ordinarily who are expected to substitute the deceased plaintiff have not come before the court to protect the interest of the plaintiff. In case of non- taking of any steps by the natural heirs of the deceased plaintiff usually the suit is to be abated after expiry of statutory period. However, in the present case, the petitioner namely Rukmuni Mohapatra has come before the Court to protect her interest created by virtue of the deed of Will executed by the deceased plaintiff in her favour in respect of the same schedule property. Accordingly, in view of the decisions as relied by the learned counsel for the petitioner so also the provisions under Section 2(11) of C.P.C. so also under Section 211 of Indian Succession Act, the legatee cannot be denied to protect the interest of executor and when none of the natural heirs of the deceased have not come before the Court then such legatee is bound to protect her interest may it be by way of substitution of impleadment as a party to the suit. It is also pertinent to mention here that the fate of the Will executed by the deceased plaintiff in favour of the petitioner Rukmuni Mohapatra squarely depends on the findings of present suit and accordingly, the petitioner daughter-in-law of the deceased plaintiff having a valid interest in the Will is the person interested in the case. Accordingly, the right to sue survives and the petitioner is liable to be substituted in place of the deceased plaintiff hence, the petition is allowed.
Put up on 23.12.2022 for filing of consolidated plaint."
5.4. Ms. Soumya Priyadarshinee, learned Advocate has effectively referred to judicial decisions to support her arguments which serve to illustrate the established legal CRP No.32 of 2022 Page 9 of 65 principles and provide a framework for understanding the current case in the light of precedents. She has placed the decisions rendered in Andhra Bank Ltd. Vrs. R. Srinivasan, AIR 1962 SC 232; Suresh Kumar Bansal Vrs. Krishna Bansal, (2010) 2 SCC 162; Chiranjilal Shrilal Goenka (Deceased) through Lrs. Vrs. Jasjit Singh, (1993) 2 SCC 507; and Surendra Chandra Jena Vrs. Laxmi Narayan Jena and others, 65 (1998) CLT 212 to buttress her arguments that the substituted plaintiff having the interest in the bequeathed suit schedule property under the Will, being legal representative, could not have been objected to by the petitioner-defendant from being substituted for the deceased plaintiff to pursue the civil suit in terms of provisions contained in Section 211 read with Section 213 of the Indian Succession Act.
5.5. Ms. Soumya Priyadarshinee, learned Advocate citing the authoritative pronouncements as referred to above, went on to argue that the probate proceeding under the Indian Succession Act, 1925 may be an independent proceeding, wherein only genuineness of the Will is required to be considered by the competent Court of law; nevertheless, she asserted that the right to sue would flow from executed Will, even if it is not probated.
5.6. She has, hence, fervently insisted to dismiss the petition.
RELEVANT PROVISIONS:
CRP No.32 of 2022 Page 10 of 656. The Indian Succession Act, 1925:
PART I PRELIMINARY "2. Definitions.--
In this Act, unless there is anything repugnant in the subject or context,--
(a) "administrator" means a person appointed by competent authority to administer the estate of a deceased person when there is no executor;
(c) "executor" means a person to whom the execution of the last Will of a deceased person is, by the testator's appointment, confided;
(f) "probate" means the copy of a Will certified under the seal of a court of competent jurisdiction with a grant of administration to the estate of the testator;
(h) "Will" means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.
PART VIII REPRESENTATIVE TITLE TO PROPERTY OF DECEASED ON SUCCESSION "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 CRP No.32 of 2022 Page 11 of 65 all purposes, and all the property of the deceased person vests in him as such.
(2) When the deceased was a Hindu, Muhammadan, Budhist, 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.
213. Right as executor or legatee when established.--
(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 under which the right is claimed, or has granted letters of administration with the Will or with a copy of an authenticated copy of the Will annexed.
(2) This section shall not apply in the case of Wills made by Muhammadans or Indian Christians, and shall only apply--
(i) in the case of Wills made by any Hindu, Buddhist, Sikh or Jaina where such Wills are of the classes specified in clauses (a) and (b) of 1[Section 57]; and 1 Section 57 of the Indian Succession Act, 1925 stands thus:
PART VI TESTAMENTARY SUCCESSION CHAPTER-I.-- Introductory [57. Application of certain provisions of Part to a class of Wills made by Hindus, etc.--
The provisions of this Part which are set out in Schedule III shall, subject to the restrictions and modifications specified therein, apply--
(a) to all Wills and codicils made by any Hindu, Buddhist, Sikh or Jaina, on or after the first day of September, 1870, within the territories which at the said date were subject to the Lieutenant Governor of Bengal or within the local limits of the ordinary CRP No.32 of 2022 Page 12 of 65
(ii) in the case of Wills made by any Parsi dying, after the commencement of the Indian Succession (Amendment) Act, 1962 (16 of 1962), where such Wills are made within the local limits of the ordinary-original civil jurisdiction of the High Courts at Calcutta, Madras and Bombay, and where such wills are made outside those limits, in so far as they relate to immovable property situate within those limits.
7. Definition of the term "legal representatives" as per clause (11) of Section 2 of the Code of Civil Procedure, 1908:
"2. Definitions.--
In this Act, unless there is anything repugnant in the subject or context,--
(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;
original civil jurisdiction of the High Courts of Judicature at Madras and Bombay; and
(b) to all such Wills and codicils made outside those territories and limits so far as relates to immoveable property situate within those territories or limits, and
(c) to all Wills and codicils made by any Hindu, Buddhist, Sikh or Jaina on or after the first day of January, 1927, to which those provisions are not applied by clauses (a) and (b):
Provided that marriage shall not revoke any such Will or codicil.] CRP No.32 of 2022 Page 13 of 65
8. Order XXII of the Code of Civil Procedure, 1908 reads thus:
"ORDER XXII DEATH, MARRIAGE AND INSOLVENCY OR PARTIES
1. No abatement by party‟s death if right to sue survives.--
The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives.
2. Procedure where one of several plaintiffs or defendants dies and right to sue survives.--
Where there are more plaintiffs or defendants than one, and any of them dies, and where the right to sue survives to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone, the Court shall cause an entry to the effect to be made on the record, and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants.
3. Procedure in case of death of one of several plaintiffs or of sole plaintiff.--
(1) Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to the sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit.CRP No.32 of 2022 Page 14 of 65
(2) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff.
4. Procedure in case of death of one of several defendants or of sole defendant.--
(1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendants to be made a party and shall proceed with the suit.
(2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant.
(3) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant.
(4) The Court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed it, has failed to CRP No.32 of 2022 Page 15 of 65 appear and contest the suit at the hearing; and judgment may, in such case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place.
(5) Where--
(a) the plaintiff was ignorant of the death of a defendant, and could not, for that reason, make an application for the substitution of the legal representative of the defendant under this rule within the period specified in the Limitation Act, 1963 (36 of 1963), and the suit has, in consequence, abated, and
(b) the plaintiff applies after the expiry of the period specified therefore in the Limitation Act, 1963 (36 of 1963), for setting aside the abatement and also for the admission of that application under Section 5 of that Act on the ground that he had, by reason of such ignorance, sufficient cause for not making the application with the period specified in the said Act, the Court shall, in considering the application under the said section 5, have due regard to the fact of such ignorance, if proved.
4A. Procedure where there is no legal representative.--
(1) If, in any suit, it shall appear to the Court that any party who has died during the pendency of the suit has no legal representative, the CRP No.32 of 2022 Page 16 of 65 Court may, on the application of any party to the suit, proceed in the absence of a person representing the estate of the deceased person, or may be order appoint the Administrator- General, or an officer of the Court or such other person as it thinks fit to represent the estate of the deceased person for the purpose of the suit; and any judgment or order subsequently given or made in the suit shall bind the estate of the deceased person to the same extent as he would have been bound if a personal representative of the deceased person had been a party to the suit.
(2) Before making an order under this rule, the Court--
(a) may require notice of the application for the order to be given to such (if any) of the persons having an interest in the estate of the deceased person as it thinks fit; and
(b) shall as certain that the person proposed to be appointed to represent the estate of the deceased person is willing to be so appointed and has no interest adverse to that of the deceased person.
5. Determination of question as to legal representative.--
Where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant, such question shall be determined by the Court: 1 [Provided that where such question arises before an Appellate CRP No.32 of 2022 Page 17 of 65 Court, that Court may, before determining the question, direct any subordinate Court to try the question and to return the records together with evidence, if any, recorded at such trial, its findings and reasons therefor, and the Appellate Court may take the same into consideration in determining the question.
6. No abatement by reason of death after hearing.--
Notwithstanding anything contained in the foregoing rules, whether the cause of action survives or not, there shall be no abatement by reason of the death of either party between the conclusion of the hearing and the pronouncing of the judgment, but judgment may in such case be pronounced notwithstanding the death and shall have the same force and effect as if it had been pronounced before the death took place.
7. Suit not abated by marriage of female party.--
(1) The marriage of a female plaintiff or defendant shall not cause the suit to abate, but the suit may notwithstanding be proceeded with the judgment, and, where the decree is against a female defendant, it may be executed against her alone.
(2) Where the husband is by law liable for the debts of his wife, the decree may, with the permission of the Court, be executed against the husband also; and, in case of judgment for the wife, execution of the decree may, with such permission, be issued upon the application of the husband, where the husband CRP No.32 of 2022 Page 18 of 65 is by law entitled to the subject-matter of the decree.
8. When plaintiff's insolvency bars suit.--
(1) The insolvency of a plaintiff in any suit which the assignee or receiver might maintain for the benefit of his creditors, shall not cause the suit to abate, unless such assignee or receiver declines to continue the suit or (unless for any special reason the Court otherwise directs) to give security for the costs thereof within such time as the Court may direct.
(2) Procedure where assignee fails to continue suit, or give security.--
Where the assignee or receiver neglects or refuses to continue the suit and to give such security within the time so ordered, the defendant may apply for the dismissal of the suit on the ground of the plaintiff's insolvency, and the Court may make an order dismissing the suit an awarding to the defendant the costs which he has incurred in defending the same to be proved as a debt against the plaintiff‟s estate.
9. Effect of abatement or dismissal.--
(1) Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action.
(2) The plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the assignee or the receiver in the case of an CRP No.32 of 2022 Page 19 of 65 insolvent plaintiff may apply for an order to set aside the abatement or dismissal; and if it is proved that he was prevented by any sufficient cause from continuing the suit, the Court shall set aside the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit.
(3) The provisions of Section 5 of the Indian Limitation Act, 1877 (15 of 1877) shall apply to applications under sub-rule (2).
Explanation.--
Nothing in this Rule shall be construed as barring, in any later suit, a defence based on the facts which constituted the cause of action in the suit which had abated or had been dismissed under this Order.
10. Procedure in case of assignment before final order in suit.--
(1) In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved.
(2) The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub-rule (1).
10A. Duty of pleader to communicate to Court death of a party.--
CRP No.32 of 2022 Page 20 of 65Wherever a pleader appearing for a party to the suit comes to know of the death of that party, he shall inform the Court about it, and the Court shall thereupon give notice of such death to the other party, and, for this purpose, the contract between the pleader and the deceased party shall be deemed to subsist.
11. Application of Order to appeals.--
In the application of this Order to appeals, so far as may be, the word "Plaintiff" shall be held to include an appellant, the word "defendant" a respondent, and the word "suit" an appeal.
12. Application of Order to proceedings.--
Nothing in Rules 3, 4 and 8 shall apply to proceedings in execution of a decree or order."
LEGAL POSITION SET FORTH THROUGH PRECEDENTS:
9. It may be beneficial to quote from Meena Pradhan Vrs.
Kamla Pradhan, 2023 INSC 847 (non-reportable) [reported at (2023) 9 SCC 734], wherein the Hon'ble Supreme Court of India has been pleased to lay down the principles regarding validity and execution of Will:
"9. A Will is an instrument of testamentary disposition of property. It is a legally acknowledged mode of bequeathing a testator‟s property during his lifetime to be acted upon on his/her death and carries with it an element of sanctity. It speaks from the death of the testator. Since the testator/testatrix, at the time of testing the document for its validity, would not be CRP No.32 of 2022 Page 21 of 65 available for deposing as to the circumstances in which the Will came to be executed, stringent requisites for the proof thereof have been statutorily enjoined to rule out the possibility of any manipulation.
10. Relying on H. Venkatachala Iyengar Vrs. B.N. Thimmajamma, 1959 Supp (1) SCR 426 (3-Judge Bench), Bhagwan Kaur Vrs. Kartar Kaur, (1994) 5 SCC 135 (3-Judge Bench), Janki Narayan Bhoir Vrs. Narayan Namdeo Kadam, (2003) 2 SCC 91(2-Judge Bench) Yumnam Ongbi Tampha Ibema Devi Vrs.
Yumnam Joykumar Singh, (2009) 4 SCC 780 (3-
Judge Bench) and Shivakumar Vrs.
Sharanabasappa, (2021) 11 SCC 277 (3-Judge Bench), we can deduce/infer the following principles required for proving the validity and execution of the Will:
i. The Court has to consider two aspects: firstly, that the Will is executed by the testator, and secondly, that it was the last Will executed by him;
ii. It is not required to be proved with mathematical accuracy, but the test of satisfaction of the prudent mind has to be applied.
iii. A Will is required to fulfil all the formalities required under Section 63 of the Succession Act, that is to say:
(a) The testator shall sign or affix his mark to the Will or it shall be signed by some other person in his presence and by his CRP No.32 of 2022 Page 22 of 65 direction and the said signature or affixation shall show that it was intended to give effect to the writing as a Will;
(b) It is mandatory to get it attested by two or more witnesses, though no particular form of attestation is necessary;
(c) Each of the attesting witnesses must have seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of such signatures;
(d) Each of the attesting witnesses shall sign the Will in the presence of the testator, however, the presence of all witnesses at the same time is not required;
iv. For the purpose of proving the execution of the Will, at least one of the attesting witnesses, who is alive, subject to the process of court, and capable of giving evidence, shall be examined;
v. The attesting witness should speak not only about the testator‟s signatures but also that each of the witnesses had signed the will in the presence of the testator;
vi. If one attesting witness can prove the execution of the Will, the examination of other attesting witnesses can be dispensed with;
CRP No.32 of 2022 Page 23 of 65vii. Where one attesting witness examined to prove the Will fails to prove its due execution, then the other available attesting witness has to be called to supplement his evidence;
viii. Whenever there exists any suspicion as to the execution of the Will, it is the responsibility of the propounder to remove all legitimate suspicions before it can be accepted as the testator‟s last Will. In such cases, the initial onus on the propounder becomes heavier.
ix. The test of judicial conscience has been evolved for dealing with those cases where the execution of the Will is surrounded by suspicious circumstances. It requires to consider factors such as awareness of the testator as to the content as well as the consequences, nature and effect of the dispositions in the Will; sound, certain and disposing state of mind and memory of the testator at the time of execution; testator executed the Will while acting on his own free Will;
x. One who alleges fraud, fabrication, undue influence et cetera has to prove the same. However, even in the absence of such allegations, if there are circumstances giving rise to doubt, then it becomes the duty of the propounder to dispel such suspicious circumstances by giving a cogent and convincing explanation.
xi. Suspicious circumstances must be „real, germane and valid‟ and not merely „the CRP No.32 of 2022 Page 24 of 65 fantasy of the doubting mind‟. Whether a particular feature would qualify as „suspicious‟ would depend on the facts and circumstances of each case. Any circumstance raising suspicion legitimate in nature would qualify as a suspicious circumstance for example, a shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the Will under which he receives a substantial benefit, etc.
11. In short, apart from statutory compliance, broadly it has to be proved that:
(a) the testator signed the Will out of his own free Will,
(b) at the time of execution he had a sound state of mind,
(c) he was aware of the nature and effect thereof and
(d) the Will was not executed under any suspicious circumstances."
10. This Court notices the following decisions on the issue involved in the present matter, relevant portions of which are quoted hereunder:
i. Chiranjilal Shrilal Goenka Vrs. Jasjit Singh, (1993) 2 SCC 507 = (1993) 2 SCR 454: (extracted from SCC) "8. In Black‟s Law Dictionary the meaning of the word „legal representative‟ is: The term in its broadest CRP No.32 of 2022 Page 25 of 65 sense means one who stands in place of, and represents the interests of another. A person who oversees the legal affairs of another. Examples include the executors or administrator of an estate and a Court appointed guardian of a minor or incompetent person.
9. Term „legal representative‟ which is almost always held to be synonymous with term „personal representative‟, means in accident cases, member of family entitled to benefits under wrongful death statute, unsatisfied claim and judgment fund. In Andhra Bank Ltd. Vrs. R. Srinivasan, (1963) 1 An WR (SC) 14 = AIR 1962 SC 232 = (1962) 3 SCR 391 this Court considered the question whether the legatee under the Will is the legal representative within the meaning of Section 2(11) of the Code. It was held that it is well known that the expression "legal representative" had not been defined in the Code of 1882 and that led to a difference of judicial opinion as to its denotation.
Considering the case-law developed in that behalf it was held that respondents 2 to 12, the legatees under the Will of the estate are legal representatives of the deceased Raja Bahadur and so it follows that the estate of the deceased was sufficiently represented by them when the judgments were pronounced.
10. In the Official Liquidator Vrs. Parthasarathi Sinha, (1983) 1 SCC 538 = 1983 SCC (Tax) 75 = AIR 1983 SC 188 this Court considered whether the legal representative would be bound by the liability for misfeasance proceeding against the deceased. While considering that question under Section 50, CPC this CRP No.32 of 2022 Page 26 of 65 Court held that the legal representative, of course, would not be liable for any sum beyond the value of the estate of the deceased in his hands. Mulla on CPC, 14th Edn., Vol. 1 at p. 27 stated that a person on whom the estate of the deceased devolves would be his legal representative even if he is not in actual possession of the estate. It includes heirs and also persons who without title either as executors, administrators were in possession of the estate of the deceased. It is, therefore, clear that the term legal representative is wide and inclusive of not only the heirs but also intermeddlers of the estate of the deceased as well as a person who in law represents the estate of the deceased. It is not necessarily confined to heirs alone. The executor, administrators, assigns or persons acquiring interest by devolution under Order 22, Rule 10 or legatee under a Will, are legal representatives.
11. Section 3(f) of the Hindu Succession Act, 1956 defines "heirs" to mean any person, male or female who is entitled to succeed to the property of an intestate under this Act. Section 8 thereof provides that the property of a male Hindu dying intestate shall devolve according to the provisions of this chapter, „Chapter II‟ (Intestate succession) firstly upon the heirs, being the relatives specified in Class I of the Schedule .... Schedule provides Class I heirs are son, daughter, widow, mother .... Thus under the personal law of Hindu Succession Act, if a Hindu dies intestate, the heirs either male or female specified in Schedule I, Class I, are heirs and succeed to the estate as per law. In their absence, the next class or classes are entitled to succeed to CRP No.32 of 2022 Page 27 of 65 the property of an intestate under the Act. In Sudama Devi Vrs. Jogendra Choudhary, AIR 1987 Pat 239 (FB) = 1987 PLJR 394 a Full Bench considered the question whether father of the minor in possession of his property and who himself was a party to the suit along with the minor is legal representative. The minor died. The father was held per majority to be legal representative under Section 2(11) of the Code as an intermeddler. It must therefore be held that not only that Class I heirs under Section 8 read with Schedule of the Hindu Succession Act but also the executor of the Will of the deceased Goenka are legal representatives within the meaning of Section 2(11) of the Code.
12. Section 213 of the Indian Succession Act (39 of 1925) for short „the Succession Act‟ provides right to the executor to obtain probate of the Will thus:
„(1) No right as executor ... can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the Will under which the right is claimed ... with a copy of the Will annexed."
By operation of sub-section (2)(i) only in the case of Wills made by any Hindu ... where such Wills are of classes specified in clauses (a) and (b) of Section 57 ... Section 57 provides that the provisions of this part which are set out in Schedule III, shall, subject to the restrictions and modifications specified therein, apply-- (a) to all Wills ... made by any Hindu, on or after the first day of September, 1870, within the local limits of the ordinary original civil jurisdiction of the High Court of Judicature at Madras and Bombay CRP No.32 of 2022 Page 28 of 65 ... (c) to all Wills and codicils made by any Hindu ... on or after the first day of January, 1927, to which those provisions are not applied by clauses (a) and
(b). In other places the District Court or Court to whom the power is delegated alone are entitled to grant probate.
13. Section 276 provides the procedure to obtain probate, namely,-- (1) application for probate ... with the Will annexed, shall be made by a petition distinctly written in English ... with the Will or copy, as the case may be, stating the particulars and the details mentioned in clauses (a) to (e) and further details provided in sub-sections (2) and (3), the mention of the details whereof are not material for the purpose of this case. The petition shall be verified in the manner prescribed under Section 280 and also further to be verified by at least one of the witnesses to the Will in the manner and to the effect specified therein. The Caveator is entitled to object to its grant by operation of Section 284 .... When it is contested Section 295 directs that probate proceedings shall take, as nearly as may be, the form of a regular suit, according to the provisions of CPC and the petitioner for probate ... shall be the plaintiff and the person who had appeared to oppose the grant shall be the defendant. Section 217 expressly provides that save as otherwise provided by this Act or by any other law for the time being in force, all grants of probate ... with the Will annexed ... shall be made or carried out, as the case may be, in accordance with the provisions of Part IX. Section 222 declares that (1) Probate shall be granted only to an executor appointed by the Will. (2) The appointment may be expressed or by necessary CRP No.32 of 2022 Page 29 of 65 implication Section 223 prohibits grant of probates to the persons specified therein. Section 224 gives power to appoint several executors. Section 227 declares the effect of probate thus: "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." Section 248 envisages grant of probate for special purposes, namely, "if an executor is appointed for any limited purpose specified in the will, the probate shall be limited to that purpose, and if he should appoint an attorney ... with the Will annexed, shall be limited accordingly"
14. Section 273 declares conclusiveness of probate thus:
"Probate ... shall have effect over all the property and estate, moveable or immovable, of the deceased, throughout the State in which the same is or are granted; and shall be conclusive as to the representative title against the debtors of the deceased, and all persons holding property which belongs to him, and shall afford full indemnity to all debtors, paying their debts and all persons delivering up such property to the person to whom such probate ... have been granted". The further details are not necessary for the purpose of this case. Under Section 294 it shall be the duty of the Court to preserve original wills. Section 299 gives right of appeals against an order or the decree of the court of probate. By operation of Section 211(1) the executor of a deceased person is his legal representative for all purposes, and all the property of the deceased person vests in him as such.CRP No.32 of 2022 Page 30 of 65
15. In Ishwardeo Narain Singh Vrs. Smt. Kamta Devi, (1953) 1 SCC 295 = AIR 1954 SC 280 this Court held that the Court of probate is only concerned with the question as to whether the document put forward as the last Will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the probate court. Therefore the only issue in a probate proceedings relates to the genuineness and due execution of the Will and the court itself is under duty to determine it and preserve the original Will in its custody.
The Succession Act is a self-contained code insofar as the question of making an application for probate, grant or refusal of probate or an appeal carried against the decision of the probate court. This is clearly manifested in the fascicule of the provisions of the Act. The probate proceedings shall be conducted by the probate court in the manner prescribed in the Act and in no other ways. The grant of probate with a copy of the Will annexed establishes conclusively as to the appointment of the executor and the valid execution of the Will. Thus it does no more than establish the factum of the Will and the legal character of the executor. Probate court does not decide any question of title or of the existence of the property itself.
16. The grant of a probate by Court of competent jurisdiction is in the nature of a proceeding in rem. So long as the order remains in force it is CRP No.32 of 2022 Page 31 of 65 conclusive as to the due execution and validity of the Will unless it is duly revoked as per law. It binds not only upon all the parties made before the court but also upon all other persons in all proceedings arising out of the Will or claims under or connected therewith. The decision of the probate court, therefore, is the judgment in rem. The probate granted by the competent Court is conclusive of the validity of the Will until it is revoked and no evidence can be admitted to impeach it except in a proceeding taken for revoking the probate. In Sheoparsan Singh Vrs. Ramnandan Prasad Narayan Singh, ILR (1916) 43 Cal 694 = AIR 1916 PC 78 = 43 IA 91 the Judicial Committee was to consider whether the Will which had been affirmed by a Court of competent jurisdiction, would not be impugned in a Court exercising original jurisdiction (civil court) in suit to declare the grant of probate illegal etc. The Privy Council held that the civil court has no jurisdiction to impugn the grant of probate by the Court of competent jurisdiction. In that case the subordinate Court of Muzafarbad was held to have had no jurisdiction to question the validity of the probate granted by the Calcutta High Court. In Narbheram Jivram Purohit Vrs. Jevallabh Harjivan, AIR 1933 Bom 469 = 35 BLR 998 = 147 IC 362 probate was granted by the High Court exercising probate jurisdiction. A civil suit on the original side was filed seeking apart from questioning the probate, also other reliefs. The High Court held that when a probate was granted, it operates upon the whole estate and establishes the Will from the death of the testator. Probate is conclusive evidence not only of the factum, but also of the validity of the Will and after the probate has been granted, it is CRP No.32 of 2022 Page 32 of 65 incumbent of a person who wants to have the Will declared null and void, to have the probate revoked before proceeding further. That could be done only before the probate court and not on the original side of the High Court. When a request was made to transfer the suit to the probate court, the learned Judge declined to grant the relief and stayed the proceeding on the original side. Thus it is conclusive that the court of probate alone had jurisdiction and is competent to grant probate to the Will annexed to the petition in the manner prescribed under the Succession Act. That court alone is competent to deal with the probate proceedings and to grant or refuse probate of the annexed Will. It should keep the original Will in its custody. The probate thus granted is conclusive unless it is revoked. It is a judgment in rem.
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20. On a conspectus of the above legal scenario we conclude that the probate court has been conferred with exclusive jurisdiction to grant probate of the Will of the deceased annexed to the petition (suit); on grant or refusal thereof, it has to preserve the original Will produced before it. The grant of probate is final subject to appeal, if any, or revocation if made in terms of the provisions of the Succession Act. It is a judgment in rem and conclusive and binds not only the parties but also the entire world. The award deprives the parties of statutory right of appeal provided under Section 299. Thus the necessary conclusion is that the probate court alone has exclusive jurisdiction and the civil court on CRP No.32 of 2022 Page 33 of 65 original side or the arbitrator does not get jurisdiction, even if consented to by the parties, to adjudicate upon the proof or validity of the Will propounded by the executrix, the applicant. It is already seen that the executrix was nominated expressly in the Will and is a legal representative entitled to represent the estate of the deceased but the heirs cannot get any probate before the probate court. They are entitled only to resist the claim of the executrix of the execution and genuineness of the will. The grant of probate gives the executrix the right to represent the estate of the deceased, the subject-matter in other proceedings. We make it clear that our exposition of law is only for the purpose of finding the jurisdiction of the arbitrator and not an expression of opinion on merits in the probate suit."
ii. Jaladi Suguna Vrs. Satya Sai Central Trust, (2008) 7 SCR 734 = (2008) 8 SCC 521: (extracted from SCC) "12. "Legal representative" according to its definition in Section 2(11) CPC, 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. Thus a legatee under a will, who intends to represent the estate of the deceased testator, being an intermeddler with the estate of the deceased, will be a legal representative.
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14. When a respondent in an appeal dies, and the right to sue survives, the legal representatives of the CRP No.32 of 2022 Page 34 of 65 deceased respondent have to be brought on record before the Court can proceed further in the appeal. Where the respondent-plaintiff who has succeeded in a suit, dies during the pendency of the appeal, any judgment rendered on hearing the appeal filed by the defendant, without bringing the legal representatives of the deceased respondent-plaintiff on record, will be a nullity. In the appeal before the High Court, the first respondent therein (Suguna) was the contesting respondent and the second respondent (the tenant) was only a pro forma respondent. When the first respondent in the appeal died, the right to prosecute the appeal survived against her estate. Therefore, it was necessary to bring the legal representative(s) of the deceased Suguna on record to proceed with the appeal.
15. Filing an application to bring the legal representatives on record, does not amount to bringing the legal representatives on record. When an LR application is filed, the court should consider it and decide whether the persons named therein as the legal representatives, should be brought on record to represent the estate of the deceased. Until such decision by the court, the persons claiming to be the legal representatives have no right to represent the estate of the deceased, nor prosecute or defend the case. If there is a dispute as to who is the legal representative, a decision should be rendered on such dispute. Only when the question of legal representative is determined by the court and such legal representative is brought on record, can it be said that the estate of the deceased is represented. The determination as to who is the legal CRP No.32 of 2022 Page 35 of 65 representative under Order 22 Rule 5 will of course be for the limited purpose of representation of the estate of the deceased, for adjudication of that case. Such determination for such limited purpose will not confer on the person held to be the legal representative, any right to the property which is the subject-matter of the suit, vis-à-vis other rival claimants to the estate of the deceased.
16. The provisions of Rules 4 and 5 of Order 22 are mandatory. When a respondent in an appeal dies, the court cannot simply say that it will hear all rival claimants to the estate of the deceased respondent and proceed to dispose of the appeal. Nor can it implead all persons claiming to be legal representatives, as parties to the appeal without deciding who will represent the estate of the deceased, and proceed to hear the appeal on merits. The Court cannot also postpone the decision as to who is the legal representative of the deceased respondent, for being decided along with the appeal on merits. The Code clearly provides that where a question arises as to whether any person is or is not the legal representative of a deceased respondent, such question shall be determined by the court. The Code also provides that where one of the respondents dies and the right to sue does not survive against the surviving respondents, the court shall, on an application made in that behalf, cause the legal representatives of the deceased respondent to be made parties, and then proceed with the case. Though Rule 5 does not specifically provide that determination of legal representative should CRP No.32 of 2022 Page 36 of 65 precede the hearing of the appeal on merits, Rule 4 read with Rule 11 makes it clear that the appeal can be heard only after the legal representatives are brought on record.
17. The third respondent, who is the husband of the deceased, wants to come on record in his capacity as a sole legal heir of the deceased, and support the case of the Trust that there was a valid gift by the deceased in its favour. On the other hand, the appellants want to come on record as testamentary legatees in whose favour the suit property was bequeathed by will, and represent the estate of the deceased Suguna as intermeddlers. They want to continue the contest to the appeal. When Suguna, the first respondent in the appeal before the High Court died, the proper course for the High Court, was first to decide as to who were her legal representatives. For this purpose the High Court could, as in fact it did, refer the question to a subordinate court under the proviso to Rule 5 of Order 22 CPC, to secure findings. After getting the findings, it ought to have decided that question, and permitted the person(s) who are held to be the legal representative(s) to come on record. Only then there would be representation of the estate of the deceased respondent in the appeal. The appeal could be heard on merits only after the legal representatives of the deceased first respondent were brought on record. But in this case, on the dates when the appeal was heard and disposed of, the first respondent therein was dead, and though rival claimants to her estate had put forth their claim to represent her estate, the dispute as to who should be the legal representative was left undecided, and CRP No.32 of 2022 Page 37 of 65 as a result the estate of the deceased had remained unrepresented. The third respondent was added as the legal representative of the deceased first respondent only after the final judgment was rendered allowing the appeal. That amounts to the appeal being heard against a dead person. That is clearly impermissible in law. We, therefore, hold that the entire judgment is a nullity and inoperative."
iii. Suresh Kumar Bansal Vrs. Krishna Bansal, (2010) 2 SCC 162 = (2009) 16 Addl.SCR 419: (SCC) "10. Before us, the only question that has to be gone into is whether the appellant, on the death of the original plaintiff, namely, Mohanlal, was entitled to be impleaded/substituted in the suit for eviction along with the natural heirs and legal representatives of the deceased, namely, Respondent 1 and others.
11. Ms. Indu Malhotra, learned Senior Counsel appearing on behalf of the appellant submitted that since a separate probate proceeding has already been instituted by the appellant for grant of probate in the competent court of law which is now pending, the only course open to the court was to substitute or implead the appellant in the eviction proceeding along with natural heirs and legal representatives of the deceased plaintiff, that is to say, the entire proceeding should be carried on not only by the natural heirs and legal representatives of the deceased plaintiff but also by the appellant subject to grant of probate by a competent court of law. In support of this contention, Ms. Malhotra, learned Senior Counsel appearing on behalf of the appellant had drawn our attention to a decision of this Court CRP No.32 of 2022 Page 38 of 65 in Jaladi Suguna Vrs. Satya Sai Central Trust, (2008) 8 SCC 521.
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15. It is true that in the impugned order, the High Court has made it clear that the finding regarding genuineness of the Will was made only for the purpose of deciding the application for impleadment filed at the instance of the appellant. But, in our view, if at this stage, the appellant is not permitted to be impleaded and in the event an order of eviction is passed ultimately against the respondent tenant, the tenants will be evicted by the natural heirs and legal representatives of the deceased plaintiff who thereby shall take possession of the suit premises, but if ultimately the probate of the alleged Will of the deceased plaintiff is granted by the competent court of law, the suit property would devolve on the appellant but not on the natural heirs and legal representative of the deceased. Therefore, in the event of grant of probate in favour of the appellant, he has to take legal proceeding against the natural heirs and legal representatives of the deceased plaintiff for recovery of possession of the suit premises from them which would involve not only huge expenses but also considerable time would be spent to get the suit premises recovered from the natural heirs and legal representatives of the deceased plaintiff.
16. On the other hand, if the appellant is allowed to carry on the eviction petition along with the natural heirs and legal representatives of the deceased plaintiff, in that case a decree can be passed for eviction of the tenant when the CRP No.32 of 2022 Page 39 of 65 appellant shall not be entitled to get possession from the tenants in respect of the suit premises until the probate in question is granted and produced before the court. Therefore, ultimately if the court grants a decree for eviction of the respondent tenant from the suit premises, such decree shall be passed subject to production of probate by the appellant.
17. That apart, since the question of genuineness of the Will cannot be conclusively gone into by the court in a proceeding for substitution in a pending eviction suit and in view of the fact that an application was made at the instance of the appellant for impleadment as a legal representative of the deceased on the basis of the Will which is yet to be probated, in our view, the best course open to the court is to allow impleadment of the appellant in the eviction proceeding, thereby permitting him to proceed with the eviction suit along with natural heirs and legal representatives of the deceased plaintiff, but in case the decree is to be passed for eviction of the tenant from the suit premises such eviction decree shall be subject to the grant of probate of the Will alleged to have been executed by the deceased plaintiff.
18. At the same time, it is clear that in case the Will of the deceased plaintiff is found not to be genuine and probate is not granted, the court shall proceed to grant the eviction decree in favour of Respondent 1 and not in favour of the appellant. It is well settled that in the event, the Will is found to be genuine and probate is granted, only the appellant would be entitled to get an order of eviction of the respondent CRP No.32 of 2022 Page 40 of 65 tenants from the suit premises excluding the claim of the natural heirs and legal representatives of the deceased plaintiff.
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20. It is now well settled that determination of the question as to who is the legal representative of the deceased plaintiff or defendant under Order 22 Rule 5 of the Code of Civil Procedure is only for the purpose of bringing legal representatives on record for the conducting of those legal proceedings only and does not operate as res judicata and the inter se dispute between the rival legal representatives has to be independently tried and decided in probate proceedings. If this is allowed to be carried on for a decision of an eviction suit or other allied suits, the suits would be delayed, by which only the tenants will be benefited.
21. In order to shorten the litigation and to consider the rival claims of the parties, in our view, the proper course to follow is to bring all the heirs and legal representatives of the deceased plaintiff on record including the legal representatives who are claiming on the basis of the Will of the deceased plaintiff so that all the legal representatives, namely, the appellant and the natural heirs and legal representatives of the deceased plaintiff can represent the estate of the deceased for the ultimate benefit of the real legal representatives. If this process is followed, this would also avoid delay in disposal of the suit.
CRP No.32 of 2022 Page 41 of 65***
23. Before parting with this judgment, it is necessary to consider the decision of this Court in Jaladi Suguna Vrs. Satya Sai Central Trust, (2008) 8 SCC 521 cited by the learned Senior Counsel for the appellant. In Jaladi Suguna, (2008) 8 SCC 521 this Court held that the intestate heir (husband) and the testamentary legatees (nieces and nephews), seeking impleadment as the heirs of the deceased respondent in an appeal have to be brought on record before the court can proceed further in the appeal. Furthermore, in that decision it was also held that a legatee under a will, who intends to represent the estate of the deceased testator, being an intermeddler with the estate of the deceased testator, will be a legal representative.
24. In view of the aforesaid discussions and in view of the decision in Jaladi Suguna, (2008) 8 SCC 521, we are also of the view that in an eviction proceeding, when a legatee under a Will intends to represent the interest of the estate of the deceased testator, he will be a legal representative within the meaning of Section 2(11) of the Code of Civil Procedure, for which it is not necessary in an eviction suit to decide whether the Will on the basis of which substitution is sought for, is a suspicious one or that the parties must send the case back to the Probate Court for a decision whether the Will was genuine or not."
iv. Varadarajan Vrs. Kanakavalli, (2020) 1 SCR 132:
"6. The High Court held that the Executing Court is the competent and proper Court to determine the validity CRP No.32 of 2022 Page 42 of 65 of the Will as well as the legatee under a Will can be construed as a legal representative and come on record to seek execution of the decree. However, the High Court found that the execution of the Will was surrounded by suspicious circumstances. It may be noticed that the High Court in revisional jurisdiction has interfered with the findings of fact recorded by the Executing Court in respect of execution of Will arrived at after considering the evidence led by the parties. The High Court found that as per the appellant, the decree holder, Umadevi, was driven out of her house by her step son Munisamy Naicker and was staying with her sister for nearly 20 years but the execution of the Will at the last moment is a suspicious circumstance. The High Court returned the following findings:
„19. In view of all the above facts which were established by way of evidence, this Court is of the view that the propounder on whom the allegation casts upon to dispel the suspicious circumstances surrounded the execution of the will. Further, the Court below has not given satisfactory reasons while coming to the conclusion that the Will was proved. In the absence of satisfactory evidence, I am unable to ascertain as to whether the Will was executed by the testatrix. Therefore, when once it is held that the very execution of the Will has not been proved and it is not genuine, consequently, the legatee under the said Will cannot become a legal representative to come on record in order to maintain the execution petition in the place of the decree holder, i.e. the testatrix.‟ CRP No.32 of 2022 Page 43 of 65
7. We find that the order of the High Court is not sustainable in law. The appellant claims to be the legal representative of Umadevi on the basis of the Will executed by her. He has produced an attesting witness and the scribe of the Will. The witnesses have deposed the execution of the Will by Umadevi in favour of the appellant who is the son of her sister. No one else has come forward to seek execution of decree as the legal representative of the deceased decree holder. It is Umadevi who has filed the execution petition but after her death, the appellant has filed an application to continue with the execution. In the absence of any rival claimant claiming to be the legal representative of the deceased decree holder, the High Court was not justified in setting aside the order of the Executing Court, when in terms of Order XXII Rule 5 of the Code, the jurisdiction to determine who is a legal heir is summary in nature.
8. We may state that Order XXII of the Code is applicable to the pending proceedings in a suit. But the conflicting claims of legal representatives can be decided in execution proceedings in view of the principles of Rule 5 of Order XXII.
This Court in a judgment reported as V. Uthirapathi Vrs. Ashrab, (1998) 3 SCC 148 = (1998) 1 SCR 937 held that the normal principle arising in a suit-- before the decree is passed-- that the legal representatives are to be brought on record within a particular period is not applicable to cases of death of the decree-holder or the judgment-debtor in execution proceedings. This Court held as under:
CRP No.32 of 2022 Page 44 of 65„11. Order 22 Rule 12 of the Code of Civil Procedure reads as follows: "Order 22 Rule 12:
Application of order to proceedings.-- Nothing in Rules 3, 4 and 8 shall apply to proceedings in execution of a decree or order."
12. In other words, the normal principle arising in a suit-- before the decree is passed-- that the legal representatives are to be brought on record within a particular period and if not, the suit could abate,-- is not applicable to cases of death of the decree holder or the judgment-
debtor in execution proceedings.
13. In Venkatachalam Chetti Vrs. Ramaswami Servai, ILR (1932) 55 Mad 352 = AIR 1932 Mad 73 (FB) a Full Bench of the Madras High Court has held that this rule enacts that the penalty of abatement shall not attach to execution proceedings. Mulla‟s Commentary on CPC [(Vol.
3) p. 2085 (15th Edn., 1997)] refers to a large number of judgments of the High Courts and says:
„Rule 12 engrafts an exemption which provides that where a party to an execution proceeding dies during its pendency, provisions as to abatement do not apply. The Rule is, therefore, for the benefit of the decree-holder, for his heirs need not take steps for substitution under Rule 2 but may apply immediately or at any time while the proceeding is pending, to carry on the proceeding or they may file a fresh execution application.‟ CRP No.32 of 2022 Page 45 of 65
14. In our opinion, the above statement of law in Mulla‟s Commentary on CPC, correctly represents the legal position relating to the procedure to be adopted by the parties in execution proceedings and as to the powers of the civil court.‟
9. The legal representatives are impleaded for the purpose of a suit alone as held by this Court in Daya Ram Vrs. Shyam Sundari, AIR 1965 SC 1049 = (1965) SCR 231 wherein it was held that impleaded legal representatives sufficiently represent the estate of the deceased and the decision obtained with them on record will bind not merely those impleaded but the entire estate, including those not brought on record. This Court approved the judgment of the Madras High Court in Kadir Vrs. Muthukrishna Ayyar, ILR 26 MAD 230.
10. The Full Bench of the Punjab & Haryana High Court in a judgment reported as Mohinder Kaur Vrs. Piara Singh, AIR 1981 P&H 130 examined the question as to whether a decision under Order XXII Rule 5 of the Code would act as res judicata in a subsequent suit between the same parties or persons claiming through them. The Court held as under:
„5. So far as the first argument of Mr. Bindra, noticed above is concerned, we find that in addition to the judgments of the Lahore High Court and of this Court, referred to in the earlier part of this judgment, he is supported by a string of judgments of other High Courts as well wherein it has repeatedly been held on varied reasons, that, a decision under Order 22, Rule 5, Civil Procedure Code, would not CRP No.32 of 2022 Page 46 of 65 operate as res judicata in a subsequent suit between the same parties or persons claiming through them wherein the question of succession or heirship to the deceased party in the earlier proceedings is directly raised. Some of these reasons are as follows:--
(i) Such a decision is not on an issue arising in the suit itself, but is really a matter collateral to the suit and has to be decided before the suit itself can be proceeded with. The decision does not lead to the determination of any issue in the suit.
(ii) The legal representative is appointed for orderly conduct of the suit only. Such a decision could not take away, for all times to come, the rights of a rightful heir of the deceased in all matters.
(iii) The decision is the result of a summary enquiry against which no appeal has been provided for.
(iv) The concepts of legal representative and heirship of a deceased party are entirely different. In order to constitute one as a legal representative, it is unnecessary that he should have a beneficial interest in the estate. The executors and administrators are legal representatives though they may have no beneficial interest.
Trespasser into the property of the deceased claiming title in himself CRP No.32 of 2022 Page 47 of 65 independently of the deceased will not be a legal representative. On the other hand the heirs on whom beneficial interest devolved under the law whether statute or other, governing the parties will be legal representatives.
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9. We are, therefore, of the opinion that in essence a decision under Order 22, Rule 5, Civil Procedure Code, is only directed to answers an orderly conduct of the proceedings with a view to avoid the delay in the final decision of the suit till the persons claiming to be the representatives of the deceased party get the question of succession settled through a different suit and such a decision does not put an end to the litigation in that regard. It also does not determine any of the issues in controversy in the suit. Besides this it is obvious that such a proceeding is of a very summary nature against the result of which no appeal is provided for. The grant of an opportunity to lead some sort of evidence in support of the claim of being a legal representative of the deceased party would not in any manner change the nature of the proceedings. In the instant case the brevity of the order (reproduced above) with which the report submitted by the trial Court after enquiry into the matter was accepted, is a clear pointer to the fact that the proceedings resorted to were treated to be of a very summary nature. It is thus manifest that the Civil Procedure Code CRP No.32 of 2022 Page 48 of 65 proceeds upon the view of not imparting any finality to the determination of the question of succession or heirship of the deceased party.‟
11. The judgment in Mohinder Kaur (AIR 1981 P&H 130) was referred to and approved by this Court in a judgment reported as Dashrath Rao Kate Vrs. Brij Mohan Srivastava, (2010) 1 SCC 277. In the said case, the High Court came to the conclusion that since the inquiry under Order XXII Rule 5 of the Code was of a summary nature, it was limited only to the determination of the right of the appellant therein to be impleaded as the legal representative. This Court in the said case held as under:
„21. As a legal position, it cannot be disputed that normally, an enquiry under Order 22 Rule 5 CPC is of a summary nature and findings therein cannot amount to res judicata, however, that legal position is true only in respect of those parties, who set up a rival claim against the legatee. For example, here, there were two other persons, they being Ramesh and Arun Kate, who were joined in the civil revision as the legal representatives of Sukhiabai. The finding on the Will in the order dated 09.09.1997 passed by the trial court could not become final as against them or for that matter, anybody else, claiming a rival title to the property vis-à-vis the appellant herein, and therefore, to that extent the observations of the High Court are correct. However, it could not be expected that when the question regarding the Will was gone into in a detailed enquiry, where the evidence was recorded not CRP No.32 of 2022 Page 49 of 65 only of the appellant, but also of the attesting witness of the Will and where these witnesses were thoroughly cross-examined and where the defendant also examined himself and tried to prove that the Will was a false document and it was held that he had utterly failed in proving that the document was false, particularly because the document was fully proved by the appellant and his attesting witness, it would be futile to expect the witness to lead that evidence again in the main suit.
***
25. Dr. Kailash Chand, learned counsel appearing for the respondent, also relied on ruling in Vijayalakshmi Jayaram Vrs. M.R. Parasuram, AIR 1995 AP 351. It is correctly held by the Andhra Pradesh High Court that Order 22 Rule 5 is only for the purpose of bringing legal representatives on record for conducting of proceedings in which they are to be brought on record and it does not operate as res judicata.
However, the High Court further correctly reiterated the legal position that the inter se dispute between the rival legal representatives has to be independently tried and decided in separate proceedings. Here, there was no question of any rivalry between the legal representatives or anybody claiming any rival title against the appellant-plaintiff. Therefore, there was no question of the appellant-plaintiff proving the Will all over again in the same suit.
26. The other judgment relied upon is the Full Bench judgment of the Punjab and Haryana CRP No.32 of 2022 Page 50 of 65 High Court in Mohinder Kaur Vrs. Piara Singh, AIR 1931 P&H 130. The same view was reiterated. As we have already pointed out, there is no question of finding fault with the view expressed. However, in the peculiar facts and circumstances of this case, there will be no question of non-suiting the appellant-plaintiff, particularly because in the same suit, there would be no question of repeating the evidence, particularly when he had asserted that he had become owner on the basis of the Will (Ext. P-
1).‟ ***
14. In view of the aforesaid judgments, we find that the appellant is the sole claimant to the estate of the deceased on the basis of Will. The Executing Court has found that the appellant is the legal representative of the deceased competent to execute the decree. In view of the said fact, the appellant as the legal representative is entitled to execute the decree and to take it to its logical end."
v. Surendra Chandra Jena Vrs. Laxminarayan Jena, 1987 SCC OnLine Ori 80 = AIR 1988 Ori 143 = 65 (1988) CLT 212:
5. Apart from the above fact, Section 211 of the Act makes a special provision. According to this provision, 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.
According to the scheme of the above provision CRP No.32 of 2022 Page 51 of 65 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 XXII, Rule 10 of the Civil Procedure Code inasmuch as the testator‟s title stands vested in the executor on the his death. The case of an administrator may, however, be different, because he has to wait until grant of the letters of administration in his favour by the court. The proposition is well settled, and if any authority is needed I may refer to a case of the Patna High Court in Ramcharan Singh Vrs. Mst. Dharohar Kuer, AIR 1954 Pat 175.
11. This Court takes note of Vatsala Srinivasan Vrs.
Shyamala Raghunathan, (2016) 13 SCC 253 wherein the Hon'ble Supreme Court of India quoted from Jadeja Pravinsinhji Anandsinhji Vrs. Jadeja Mangalsinhji Shivsinhji, 1961 SCC OnLine Guj 62 = AIR 1963 Guj 32 rendered by the Gujarat High Court with approval:
"We are also in agreement with the view expressed in the impugned judgment, which has also relied upon law laid down in Jadeja Pravinsinhji Anandsinhji Vrs. Jadeja Mangalsinhji Shivsinhji, 1961 SCC OnLine Guj 62 = AIR 1963 Guj 32, in which it has been held: (SCC OnLine Guj paras 6 & 9) "6. *** An executor, in the capacity of an executor, has no personal interest in the estate of the deceased. *** The object of the executor in these proceedings is to get an adjudication not of any dispute in which he is personally interested but the object is to propound CRP No.32 of 2022 Page 52 of 65 the Will of the deceased for the benefit of those who take an interest in the Will.
***
9. It is, therefore, clear that an executor in applying for probate is not fighting a personal action but fighting for the interests of all the beneficiaries under the Will. Therefore the action of an executor in applying for a probate is not in substance a personal action and as observed earlier by me the maxim „actio personalis moritur cum persona‟ could not apply to such a case. If the executor fails in his duty, any of those whom he represents are entitled to intervene and carry on the proceedings with a „formal modification‟ that the prayer must then be for letters of administration with the Will annexed."
ANALYSIS AND DISCUSSIONS:
12. The issue involved in the present revision rests on the question whether by dint of a Will, which has till now remained not probated, the substituted plaintiff can be treated to be legal representative of the deceased plaintiff to pursue the suit. It is undisputed fact as unfurled in the pleadings and emanates from arguments of counsel for the parties that the daughter-in-law (legatee of suit schedule property), who claims to be executor of the Will of Sarojini Mohapatra (the testator-"deceased plaintiff") is allowed to continue with the suit, bearing CS No.1601 of 2020, by an order dated 14.12.2022 of the Senior Civil CRP No.32 of 2022 Page 53 of 65 Judge, Bhubaneswar. Such a course is contested by the defendant against whom the original plaintiff has instituted the said suit for declaration of gift deed executed by her null and void and for permanent injunction on the ground of fraud being played by the petitioner.
12.1. By virtue of provisions of Section 251 read with Section 253 of the Indian Succession Act, it is recognized that it is not only the "legal heir" who can represent in a suit for the deceased plaintiff or the deceased defendant, but it is the "legal representative" who can represent the deceased plaintiff or the deceased defendant to pursue the suit. It is well-settled that in a proceeding for substitution under Order XXII, CPC, Court cannot go into the question of genuineness of the Will. It is also not out of place to say that the natural heirs and legal representatives of the deceased plaintiff would only be entitled to get possession on the basis of inheritance of the suit property on the death of the original plaintiff, but the legatee under a Will would also be entitled to obtain an order or a decree in its favour subject to grant of probate of the Will of the deceased plaintiff in favour of the executor.
12.2. An executor can act even before probate is obtained. In Bali Ram Dhote Vrs. Bhupendra Nath Banerjee, 1978 CRP No.32 of 2022 Page 54 of 65 SCC OnLine Cal 153 = AIR 1978 Cal 559 it has been observed as follows:
"Under Sections 211 and 307 of the Indian Succession Act an executor obtains a title by virtue of the Will and not from the date when the Will is probated. Under Section 211 of the Indian Succession Act "the executor or administrator, as the case may be, of a deceased person is his legal representative for all purposes and all the properties of the deceased person vest in him as such."
The executor derives his title from the Will and immediately after the testator‟s death, his property vests in the executor as the law knows no interval between the testator‟s death and the vesting of the property. An executor by virtue of his office, that is in the character of executor takes an estate in the property of the deceased and a legal character is vested in him. In the present case, the Will also empowers the executor, the defendant No. 4 herein to sell the property. The executor represents the estate even before he has taken the probate. As such the probate is not necessary to make an executor entitled to the properties as his title is derived under the will. There is nothing in the law to prevent the executor from acting as an executor and exercise a power given to him without obtaining probate."
12.3. The Calcutta High Court in Ashoke Mukherjee Vrs.
Musha Khan, 1986 SCC OnLine Cal 171 held as follows:
"In such circumstances, the only point as referred to hereinbefore arises for consideration. Section 213(1) of the Indian Succession Act, 1925, which corresponds to CRP No.32 of 2022 Page 55 of 65 section 187 of the 1965 Act, no doubt lays down specifically that „No right as executor or legatee can be established in any court of justice, unless a court of competent jurisdiction in Indian has granted probate of the Will under which the right is claimed or has granted letters of administration with the Will or with an authenticated copy of the Will annexed.‟ This section has been interpreted to create a bar to the establishment of any right under the Will by an executor or a legatee unless probate or letters of administration of the Will then obtained. [Hem Nalini Vrs. Isolyne Sarojbashini, AIR 1962 SC 1472]. But it is one thing to establish any right which is different from taking any step towards the establishment of such a right. Instituting a suit or getting oneself substituted in place of the deceased testator may be a step in said towards the establishment of a right under the Will but the same is clearly distinct from the establishment of the right itself. Preponderance of this view following the decision of the Privy Council in the case of S.M.K.R. Meyappa Chetti Vrs. Subramaniam Chetti, 43 Indian Appeals 113 is that the aforesaid statutory bar incorporated in the Indian Succession Act, does not bar institution of a suit or getting the executor substituted in a pending suit. The oft-quoted passage from the aforesaid decision of the Judicial Committee is worthy of repetition. It was observed:
„It is quite clear that an executor derives his title and authority from the Will of his testator and not from any grant of probate. The personal property of the testator, including all rights of action, vests in him upon the testator‟s death and the consequence in that he can institute an action in the character of CRP No.32 of 2022 Page 56 of 65 executor before he proves the will. He cannot it is true, obtain a decree before probate, but this is not because his title depends on probate but because the production of probate is the only way in which, by the rules of the court he is allowed to prove his title.‟ The Judicial Committee therefore, expressly laid down that an executor can institute an action even before probate has been obtained though before the decree is actually passed such executor is to prove his title by proving the probate.
A Division Bench of this Court in the case of Gopal Lal Chandra Vrs. Amulya Kumar Sur, AIR 1933 Calcutta 234 (at page 236) followed the same principle when it was observed, „It is true that, if an executor institutes a suit in anticipation of probate and subsequently obtains probate, the requirements of Section 187 Succession Act (obviously referring to the old Act) are satisfied for the purpose of a decree to be obtained.‟ That appears to be the consistent view taken by this Court in other cases too and last in the series is the decision of Murari Mohan Dutt, J., in the case of Arijit Mullick Vrs. Corporation of Calcutta, 1979 (2) Cal LJ 426, with which I am in respectful agreement. A Bench decision in the case of Bibhuti Bhusan Roy Vrs. Narendra Narayan Ghose, 54 CWN 667 was relied upon in support of a contrary contention but in my opinion the said decision is clearly distinguishable since therein no point now under consideration did arise for consideration there, the issue raised was as to whether sale held in respect of a property of a deceased testator in the absence of the executor before the probate of the Will had been obtained CRP No.32 of 2022 Page 57 of 65 was a valid sale when there was substantial representation of the estate of the deceased. This Court held that in the absence of the probate since the executor could not represent the estate or contest the sale such a sale cannot be held to be invalid in law. The point thereunder consideration, therefore, was totally distinct and different from the point now under consideration by me."
12.4. In Raja Rama Vrs. Fakruddin, AIR 1930 Mad 218, the distinction between letters of administration and probate has succinctly been discussed:
"There can, we think, be no doubt that when an executor in his petition for probate includes a debt owing by his testator in Annexure-B he must be deemed to acknowledge liability for that debt in his capacity of legal representative of the deceased. This arises from his position of executor. The executor derives his title from the Will. Immediately upon the testator‟s death his property vests in the executor, for the law knows no interval between the testator‟s death and the vesting of the property [Whitehead Vrs. Taylor (1839) 10 A. & E., 210]. It follows that before and without obtaining probate the executor may do most things which appertain to his office: thus, he may take possession of the testator's property; he may pay, or take releases of debts owing from the estate; and he may receive or release debts which are owing to it (Williams on Executors, Vol. II page 220, 10th Edition). The grant of probate does not give him his title: it makes his title certain. [Hewson Vrs. Shelley, (1914) 2 Ch., 13 at p. 38].
An executor therefore, having the power as legal representative to admit and dispose of claims against the CRP No.32 of 2022 Page 58 of 65 testator‟s estate when he includes such a claim in Annexure-B as owing from the testator and payable from his estate, may be assumed to acknowledge liability of the estate for the debt. But the position of an administrator is very different. He derives his title wholly from the Court. He has none until the letters of administration are granted, and the property of the deceased vests in him only from the time of the grant [Woolley Vrs. Clark, (1822) 5 B. & Ald., 744]. Upon the issue of the grant the administrator‟s title has relation back to the date of the deceased‟s death. Section 220 of the Indian Succession Act provides:-- "Letters of administration entitle the administrator to all rights belonging to the intestate as effectually as if the administration had been granted at the moment of his death". But an act done by a party who afterwards becomes administrator to the prejudice of the estate is not made good by the subsequent administration; for it is only in those cases where the act is for the benefit of the estate that the relation back exists [see Morgan Vrs. Thomas, (1839) 10 A. & E., 210]. And this principle is embodied in Section 221, Indian Succession Act, which states:--
"Letters of administration do not render valid any intermediate acts of the administrator tending to the diminution or damage of the intestate‟s estate."
12.5. The settled position as set forth in Soona Mayna Kena Roona Meyappa Chitty Vrs. Soona Navena Suppramanian Chitty, 1916 SCC OnLine PC 11 = (1915-16) 20 CWN 833 = (1915-16) 43 IA 113 = AIR 1916 PC 202, stands thus:
"Assuming, but without deciding, that this is to be deemed to be a suit, which the testator would, if he were CRP No.32 of 2022 Page 59 of 65 living, have a right to institute, their Lordships have come to the conclusion that this contention cannot be upheld. It is quite clear that an executor derives his title and authority from the Will of his testator and not from any grant of probate. The personal property of the testator, including all rights of action, vests in him upon the testator‟s death, and the consequence is that he can institute an action in the character of executor before he proves the Will. He cannot, it is true, obtain a decree before probate, but this is not because his title depends on probate, but because the production of probate is the only way in which, by the rules of the Court, he is allowed to prove his title. An administrator, on the other hand, derives title solely under his grant and cannot, therefore, institute an action as administrator before he gets his grant. The law on the point is well settled (see Comyn‟s Digest "Administration," B. 9 and 10; Thompson Vrs. Reynolds, 3 C. & P. 123 (1827). And Woollcy Vrs. Clark, 5 B. & Ald. 744 (1822)."
12.6. Interpreting the term "as such" employed in Section 211 of the Indian Succession Act, 1925, the Gujarat High Court in the case of AIR 1999 Guj 162 observed as follows:
"We now come to the contention that the evidence of Kesuprasad Jani as regards the execution of the Will must be rejected, since he was a propounder of the Will, who had a beneficial interest under the Will, Exh. 77. Under Section 211 of the Indian Succession Act, 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 CRP No.32 of 2022 Page 60 of 65 vests in him as such. Under Section 222 of the said Act, probate can be granted only to an executor appointed by the Will. As provided by Section 226, when probate has been granted to several executors, and one of them dies, the entire representation of the testator accrues to the surviving executor or executors. 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, as provided by Section 227 of the said Act. Thus, the executor derives title under the Will and testator's properties vest in him from the death of the testator. Therefore, he may seize and take in his hands the testator‟s properties, which are covered under the Will, and there can be nothing suspicious in the fact that the properties and effects of the testator covered under the Will are found in the custody of the executor. The property bequeathed by the testator vests in the legatee, only when assent of the executor is given, as provided by Section 332 of the said Act. When the executor gives his assent to a specific bequest, that would be sufficient to divest his interest as executor and to transfer the subject of the bequest of the legatee, unless the nature or the circumstances of the property require that it shall be transferred in a particular way, as provided in Section 333 of the said Act. Assent of executor is required even to his own legacy, as provided in Section 335, which lays down that when the executor or administrator is a legatee, his assent to his own legacy is necessary to complete his title to it, in the same way as it is required when the bequest is to another person. These provisions make it abundantly clear that the executor does not acquire any personal benefit, when the property of the deceased person vests in him in his capacity as an executor. It can, therefore, never be said that the executors acquired CRP No.32 of 2022 Page 61 of 65 any beneficial interest under the Will, when the Will required them to take over the possession of the properties covered under it, as if they were the owners thereof. It is only the legal estate that vests in the executor and the vesting is not of any personal benefit. The words "as such" used in Section 211 of the Act clearly indicate that the executor is not the absolute owner of the property that vests in him, in the sense of being beneficial owner thereof and that the property vests in him only for the purpose of its administration under the Will. He gets completely divested of such legal interest as executor, when the property is transferred to the legatee, as envisaged by Section
333. The assent of the executor to a legacy gives effect to it from the death of the testator, as provided by Section 336 of the said Act and therefore an executor gets divested of his interest as an executor with effect from the death of the testator, when he assents to a specific legacy. This clearly means that no benefit to the executors in their personal capacity was ever intended to be given under the Will, Exh. 77, and all the powers or rights that they acquired were given to them in their capacity as executors and vested in them only by virtue of their office. Even though these executors have been described as „trustees‟ in the Will, Exh. 77, it is clear that the word "trustee" is used by the testatrix in a loose sense, and what is meant is that they shall be the executors of her property, appointed generally to administer her estate. On the reading of the Will, it is clear that they have been assigned duties to administer the estate and no bequest is intended to be given to them in their personal capacity. There is a presumption in law that a legacy to a person appointed as executor is given to him in that character and is attached to the office and if CRP No.32 of 2022 Page 62 of 65 he claims it otherwise than as attached to his office, it would be incumbent on him to show something in the nature of the legacy or other circumstances arising under the Will to rebut that presumption. In a case before the Chancery Division, Rees‟ Will Trusts, Williams Vrs. Hopkins, reported in (1949) 1 All ER 609, where a testator, after appointing his friend and his solicitor to be executors and trustees of his Will, referring to them as "my trustees" devised and bequeathed all his property, subject to the payment of his funeral and testamentary expenses and debts to "my trustees absolutely they well knowing my wishes concerning the same and I direct them to permit my brother LJR to have and receive the rents and profits of my property at V during his lifetime"
and LJR predeceased the testator and before signing his Will the testator had intimated to his friend and his solicitor that he desired them after his death to make certain gifts, which amounted in value to some 8,000 pounds and he then told them that they were to have the surplus for their own use and his residuary estate amounted to more than 30,000 pounds, the House of Lords held that on the true construction of the Will, the gift was made to the testator‟s friend and solicitor as trustees and the Court being bound to disregard any evidence to the contrary, they were not beneficially entitled to the surplus. ***"
13. With the aforesaid conspectus of legal position when this Court, sitting in revision against the order dated 14.12.2022 passed by the Senior Civil Judge, Bhubaneswar while considering the petition under Order XXII, Rule 3, CPC examines, does not find any infirmity in allowing the opposite party to be substituted by CRP No.32 of 2022 Page 63 of 65 treating her as "legal representative" for the deceased plaintiff viz., Sarojini Mohapatra. Inasmuch as probate would only reassert the title of the executor, the contention of the petitioner that unless and until probate is granted in favour of the opposite party, she cannot continue to pursue the suit stepping into the shoes of the deceased plaintiff is fallacious.
Conclusion:
14. Upon perusal of the impugned order, this court does not find any illegality or error in exercise of jurisdiction of the Senior Civil Judge, Bhubaneswar in disposing of the petition under Order XXII, Rule 3 so as to warrant indulgence under Section 115 of the Code of Civil Procedure, 1908.
15. As the opposite party has been substituted for deceased plaintiff, she can pursue the suit bearing CS No.1601 of 2020 till its logical end, but with a caveat-- as stipulated in Suresh Kumar Bansal Vrs. Krishna Bansal, (2010) 2 SCC 162-- the opposite party herein would be entitled to decree if the grounds taken in the plaint stand proved;
however, such decree shall be passed subject to grant of probate of the Will of the deceased plaintiff in favour of the opposite party-Rukmuni Mohapatra.
16. Having not found any valid and plausible reason to interfere with the order dated 14.12.2022 passed in CS CRP No.32 of 2022 Page 64 of 65 No.1601 of 2020 by the learned Senior Civil Judge, Bhubaneswar for the discussions made supra, this Court does not accede to the arguments advanced by the learned counsel for the revisionist and accordingly, instant revision petition stands dismissed.
16.1. Pending application, if any, also stands disposed of and as consequence thereof, interim orders passed in the matter are vacated.
16.2. It is made clear that any observation made herein touching the facts which may be relevant for proof during the trial of suit is only for the purpose of adjudication of the instant petition and shall have no bearing whatsoever on the merits of the case at any stage of civil suit being CS No.1601 of 2020 pending before the Senior Civil Judge, Bhubaneswar.
16.3. In the circumstances, the parties are left to bear their own costs.
(MURAHARI SRI RAMAN) JUDGE High Court of Orissa, Cuttack The 23rd September, 2024//Aswini/Laxmikant/Suchitra Signature Not Verified Digitally Signed Signed by: ASWINI KUMAR SETHY Designation: Personal Assistant (Secretary-in-charge) Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 23-Sep-2024 14:13:13 CRP No.32 of 2022 Page 65 of 65