Patna High Court
Arjun Prasad And Ors. vs Biteshwar Singh on 29 March, 1982
Equivalent citations: AIR1982PAT208, 1982(30)BLJR395, AIR 1982 PATNA 208, 1982 BLJR 395, (1982) BLJ 454, 1982 BBCJ 367
ORDER S. Narain, J.
1. One Peari Devi filed a suit in the court of the Second Subordinate Judge, patna, which was registered as Title Suit No. 168 of 1972, against the petitioners in this Court for a declaration that a certain deed of gift in favour of petitioner Shivaji Mandir, was void, illegal, etc. During the pendency of the suit, Peari Devi died and Biteshwar Singh, who is the Opposite Party in this Court, filed an application for substitution in place of the deceased sole plaintiff, Peari Devi. The Opposite Party claimed to be the legal representative of the deceased plaintiff, being her legatee under a registered Will dated the 19th September, 1980, executed by the deceased plaintiff in his favour. According to the Opposite Party, the entire properties of Peari Devi devolved on him under the aforesaid Will.
2. The defendant-petitioners filed a rejoinder to that application for substitution, opposing the prayer for substitution. According to the rejoinder, the aforesaid Will was forged and fabricated and further that the alleged Will being unprobated, the legatee under the Will cannot be regarded as the legal representative of the plaintiff. The defendants asserted that there was no legal representative, of the deceased sole plaintiff and, therefore, the suit was fit to be dismissed for non-prosecution.
3. It appears that during the course of hearing of that application for substitution, a photostat copy of the aforesaid alleged Will was produced and the application for substitution was resisted mainly on the ground that the Will being unprobated, the alleged legatee under the said Will could not be recognised as the legal representative.
4. The learned Subordinate Judge in seisin of the case, overruled the objection and directed substitution of the Opposite Party. The defendants have moved this Court in revision against the aforesaid order of substitution.
5. The sole point raised in this revision petition is that in view of the provisions of Section 213 of the Indian Succession Act, 1925, as neither any probate, nor letters of administration with the Will or with a copy of the Will annexed has been granted no right to be impleaded as a legal representative could be established and that, when the right to be impleaded as a legal representative was under challenge, the court below had no jurisdiction to recognise the Opposite Party as the legal representative of the deceased plaintiff.
6. In my opinion, the contention, though attractive, is unsound and must be rejected.
7. Under the terms of the Will propounded by the Opposite Party, the Opposite Party is the sole legatee or, that is to say the universal legatee, or the deceased. Though, at one point, it was faintly argued that the question that the Will was not genuine had not been decided by the court below, this plea was not really taken in the revision application, and was not pressed. We must, therefore, proceed, for the purposes of this case, on the footing that the Opposite Party is the universal legatee under the Will of the deceased plaintiff. It has been held in Andhra Bank Limited v. R. Srinivasan, (AIR 1962 SC 232), that the expression legal representative in Section 211 of the C.P.C. includes even those legatees, who obtained only a part of the deceased under a Will. If such a legatee can and, must be, regarded in view of the aforesaid decision, as the legal representative, it cannot be doubted that a universal legatee must be regarded, as held by the Madras High Court in the case of Subba Naidu v. Kannia Naidu, (AIR 1950 Mad 482), as the legal representative of the deceased testator.
8. The only question for decision is whether Section 213 of the Indian Succession Act, 1925 (hereinafter called the Act), debars a Court from recognising and impleading a legatee as a legal representative until a probate or letters of administration with the Will or a copy of the Will annexed had been obtained in respect of the Will under which he claims.
9. Section 213 of the Act, so far as is relevant, runs thus:--
"213. (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."
The crucial question for determination is whether the expression 'right' as used in Section 213 (1) of the Act is wide enough to include a right to prosecute a suit or proceeding or is the expression 'right' confined to the 'right' to enforce which a suit or legal proceeding is brought. In my opinion, the expression 'right' in Section 213 of the Act does not include within its ambit the right to prosecute a suit and is limited to the right to declare or to enforce which a suit or legal proceeding is brought. Section 213 of the Act is not a bar to the institution of the suit by the executor who has not obtained probate. As was pointed out in the case of Ramcharan Singh v. Dharohar Kuer, (AIR 1954 Patna 175), it is well settled that an executor appointed under a Will can sue to enforce a right arising under the will at any time after the death of the testator, and it will be sufficient for the purposes of Section 213, Succession Act, 1925, if probate is obtained before the passing of the decree in the suit. The bar imposed by Section 213 of the Act is as to the establishment of right as executor or legatee and it does not bar the institution of a suit by the executor. On a parity of reasoning, Section 213 of the Act cannot bar the right to sue of a legatee also. If, as was pointed out by their Lordships of the Judicial Committee in Meyyappa Chetty v. Subramanian Chetty (AIR 1916 PC 202):
"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...and the consequence is that he can institute an action in the character of executor before he proves the will."
It is equally clear that a legatee derives his title and authority from the will of his testator and not from any grant of probate. Therefore, he can equally institute an action in the character of a legatee before the will is proved. Equally with the executor, the legatee is the creature of the will and like the execulor, the legatee, to use the words of Reuben C. J. in Ramcharan Singh's case, supra "comes into existence as soon as the will becomes an operative document, that is to say; when the testator dies." As pointed out by Reuben C. J. in that case (AIR 1954 Patna 175), Sections 119 and 174 of the Act show that the conception that the property vests in the legatee immediately on the death of the testator independently of the grant of probate or letters of administration, as the case may be, is not foreign to the Act.
10. So far as the right to institute a suit is concerned, the legatee stands on the same footing as an executor. This is also clear from the circumstance that one of the decisions relied upon by Reuben C. J., who spoke for the Bench in Ram Charan Singh (supra) is the decision of the Privy Council in Chandra Kishore Roy v. Prasanna Kumari Dasi, (1901 ILR 38 Cal 327). In that case, two legatees under the will of a testator had brought a suit to recover arrears of maintenance, alleged to be due to them under the will. The suit had been instituted before they had obtained letters of administration with a copy of the will annexed, but, they obtained letters of administration prior to the passing of the decree. On the basis of Section 187 of the Indian Succession Act, 1865 (Act X of 1865), which was in pari materia with Section 213 of the Present Act, it was contended on behalf of the defendants in that suit that the legatees were not competent to maintain their suit, inasmuch as they had not obtained letters of administration, as even if the provisions of Section 187 were complied with, the compliance was after the suit commenced and was, therefore, too late. The plea of the defendants was negatived by their Lordships of the Judicial Committee, holding that the letters of administration with a certified copy of the will annexed had been obtained prior to the decree, "the provisions of the section were, therefore, strictly complied with." Their Lordships, were also of the opinion that "as the compliance was before the decree, the Court was fully competent to deal with the case."
11. In view of the aforesaid decision of their Lordships of the Judicial Committee, and the plain words of Section 213 of the Act, I am unable to accept the argument advanced on behalf of the petitioners that the case of a legatee stands on a footing different from that of an executor, so far as the right to institute a suit is concerned, and that the legatee can also institute a suit to enforce his/her legal right as a legatee, though a decree in respect thereof in his or her favour cannot, in view of the provisions of Section 213 of the Act, be made until probate or letters of administration with a copy of the will annexed has been granted in respect of the will. In my opinion, the object underlying Section 213 of the Act does not require that the expression 'right' should be construed so widely as to include a right to sue or prosecute a suit or a proceeding. The effect of grant of probate or grant of letters of administration with a copy of the will annexed is to provide a ready means of establishing the genuineness of the will conclusively against all and the object of Section 213 of the Act is the same as that of Section 12 of the Probate and Letters of Administration Act, namely to get rid of these multiplicity of Proceedings regarding the genuineness of and validity of the Will. That object can well be served by reading the expression 'right' in Section 213 as meaning a right which is sought to be established in the suit or legal proceeding the right on the basis of his being the legatee of the Will and not extending it to the right to sue or prosecute a legal proceeding.
12. If, without the grant of a probate or letters of administration with a copy of the Will annexed, a legatee can institute a suit on the death of the testator, I fail to see any reason why a legatee cannot be substituted as the legal representative and thereby continue the prosecution of the suit instituted by the testator. In permitting him to prosecute the suit as the legal representative of the deceased testator the court is doing no more than to hold that he is entitled to prosecute the suit on the death of the testator and in place of the testator, whose legal representative he is. There is no distinction in principle between the right to sue and institute a suit on the death of the testator and the right to continue, on behalf of the testator a suit which the testator himself or herself had instituted. It follows, therefore, that universal legatee, upon Prima facie proof that he is the legal representative, is entitled to be substituted as the legal representative, in place of the deceased testator, whose legal representative he claims to be under the will even if probate or letters of administration with a copy of the will annexed has not been granted in respect of that will.
13. I am fortified in this conclusion by the decision of a learned single Judge of this Court in the case of Narendra Kumar Jain v. Kamla Prasad Jain, (1972 BLJR 18). In that case, the decision of the court below refusing to substitute the executor in place of the testator, the original plaintiff, who had died during the pendency of the suit, on the ground that no Probate had been granted in respect of the will and staying the hearing of the suit till the disposal of the probate case was set aside by this Court in revision and the court below was directed to substitute the petitioner in place of the original plaintiff and, thereafter, to proceed with the suit. The argument of the learned counsel for the Opposite Party that in view of the provisions of Sec. 213 of the Act, no right as an executor can be established in a court of law and so the petitioner was not entitled to be substituted in place of the original plaintiff, was negatived by Anwar Ahmad, J, in these words:--
"It is not possible for me to accept this contention of learned counsel in view of the fact that there is a vital difference in between establishing a right in Court of law on the basis of a Will which is unprobated and the right of being substituted in place of the original plaintiff which the petitioner seeks to enforce as an executor of the Will executed by the sole plaintiff."
14. The learned lawyer for the petitioners attempted to distinguish this case on the ground that it related to the substitution of an executor, but that is a distinction without a difference, because Section 213 of the Act applies both to the executor and a legatee alike and the decision proceeds upon a construction of the expression 'right' occurring in Section 213 of the Act, the ratio being that the said expression does not include the right of being substituted in place of the original plaintiff.
15. The learned counsel appearing for the Petitioners also attempted to argue that the aforesaid case was wrongly decided for the reasons given by him. I am unable to agree that the decision is incorrect and I hold that the decision is correct, both on principle and authority. There are no doubt certain observations in Khajeh Habibulla v. Ananga Mohan Roy, (AIR 1942 Cal 571), which lend some support to some of the contentions advanced on behalf of the petitioners that a legatee or an executor under a will of which no probate Or letters of administration has been granted, cannot be substituted in place of the testator, but, for the reasons given by me earlier, I am unable to agree.
16. I must make it clear that what the court below has done is not to grant a decree to the opposite Party claiming to be universal legatee, but only to direct his substitution in place of the deceased, under whose will he claims, in respect of which will, it is stated, proceeding for probate, etc., have been instituted.
17. This application is, therefore, without merit and it is, accordingly, dismissed. In the circumstances of the case, I would make no order as to costs.