Calcutta High Court
Anjali Mullick vs Mrityunjoy Dey And Ors. on 7 January, 2004
Equivalent citations: (2004)2CALLT382(HC), 2004(2)CHN450
Author: Jayanta Kumar Biswas
Bench: Jayanta Kumar Biswas
JUDGMENT Jayanta Kumar Biswas, J.
1. This application (G.A. No. 1881 of 2002) dated May 3rd, 2002 has been taken out by one Satyendra Nath Boral (hereinafter referred to as 'the applicant'). It has been filed in the partition and administration suit (No. 706 of 1979) pending in this Court. The applicant prays for his addition in the suit as a party defendant. He makes an alternative prayer for leave to intervene in the pending suit.
2. The facts relevant for the purpose of disposal of this application are these. One Anjali Mullick as plaintiff filed the partition and administration suit in this Court in the year 1979. Seven persons were impleaded as defendants in it. In paragraph 19 (nineteen) of the plaint the plaintiff stated about the share of defendant 4 (Sm. Biva Boral) in the suit properties. On February, 24th, 1980 defendant 4 filed her written statement. On August 31st, 1991 defendant 4 executed and registered her Will. The applicant was appointed the sole executor. On December 5th, 1998 defendant 4 died. In 1999 the applicant filed an application (P.L.A. No. 97 of 1999) before this Court for grant of probate. On receipt of citation issued in such probate proceeding the plaintiff and some of the defendants of this suit lodged their caveats with supporting affidavits. The application was regarded as a contentious cause, and renumbered as Testamentary Suit No. 8 of 2000; it is pending decision. By letter dated July 5th, 2001 the applicant requested the plaintiff to take steps to substitute him in the suit for deceased defendant 4. By letter dated July 17th, 2001 the plaintiff informed her unwillingness to substitute the applicant on the ground that he is a rank outsider. In the circumstances the applicant has filed the present application for his addition in the suit as a party defendant.
3. The case of the applicant is that as the duly appointed executor of the last Will and testament of defendant 4 he is entitled to be added in the suit to represent the deceased defendant 4 and protect her interest in the suit properties.
4. The plaintiff is contesting this application by filing her opposition dated July 16th, 2003. Her case is this. In 1947 the plaintiff's grandfather Rasiklal Dey died; he was survived by his widow (Sm. Rakhaldasi), son (Biswanath Dey), and daughter (Sm. Biva Boral: defendant 4, since deceased). In 1965 the plaintiff's father Biswanath died intestate; in 1970 her mother also died intestate. The plaintiff's parents were survived by the plaintiff and her two sisters and one brother. In 1978 the plaintiffs grandmother (Sm. Rakhaldasi) died testate; her last Will and testament is dated April 18th, 1978. In her will the plaintiffs grandmother Rakahaldasi appointed the plaintiffs brother Mrityunjay Dey as the sole executor. In the year 2003 Mrityuryay filed an application (Probate Case No. 11 of 2003) for probate of the last Will and testament of his grandmother Rakhaldasi. Such application for probate filed by Mrityunjay is pending in the City Civil Court at Calcutta. From the Will executed by Rakhaldasi (the grandmother of the plaintiff and mother of deceased defendant 4 : Biva Boral) it reveals that nothing was bequeathed to deceased defendant 4 by her mother; and hence in the joint estate which is the subject-matter of the pending partition and administration suit defendant 4 had no right, title, interest or share. Deceased defendant 4 would have derived interest, if any, in the joint properties, only from her mother Rakhaldasi, but she gave her nothing. This being the factual position the applicant has no right to be added in the pending suit, as he is none but a stranger to the joint estate.
5. Defendant 1 (the brother of the plaintiff) is also contesting this application by filing opposition dated July 23rd, 2003. His case is this. His grandfather Rasiklal having died prior to the year 1956, his widow Sm. Rakhaldasi and daughter Sm. Biva Boral (deceased defendant 4) did not inherit anything from the estate of Rasiklal. After amendment of the Hindu Succession Act, 1956 Rakhaldasi, however, became a co-sharer of the estate left by her deceased husband Rasiklal. Again Rakhaldasi became owner of 1/6th undivided share of the properties of her son Biswanath Dey who predeceased her. Thus during her lifetime Rakhaldasi became owner of 2/3rd share of the properties out of which she did not bequeath anything to her daughter (Biva Boral) by her last Will and testament dated April 18th, 1978. In the suit properties deceased defendant 4 could not have any right, title, interest or share. She had been wrongly impleaded as a party defendant in the suit. Hence the applicant claiming executor of her last Will and testament is not entitled to be added in the pending suit.
6. The applicant has filed an affidavit dated August 8th, 2003 in reply to the opposition filed by the plaintiff. Besides reiterating his case in the application, in the reply he has alleged that the purported Will dated April 18th, 1978 stated to be executed by Rakhaldasi and sought to be proved after 25 years is afterthought.
7. The learned Counsel appearing for the applicant has submitted that the face of statement in the plaint regarding existence of share of deceased defendant 4 in the suit properties, on her death she cannot go unrepresented, and the applicant, as the duly appointed executor of her last Will and testament, is required to be substituted in place and stead of deceased defendant 4. His contention is that in terms of the Will, besides being the sole executor, the applicant is the sole beneficiary of the estate of deceased defendant 4, and hence he is required to be brought on record of the pending partition and administration suit.
8. The learned Counsel appearing for the plaintiff has submitted that in view of Section 213 of the Succession Act, 1925 the applicant is not entitled to be added in any capacity in the pending partition and administration suit. His contention is that the applicant is claiming a legal character which is not yet established. His further contention is that by making this application the applicant, in effect, has sought to exercise his right as executor, but Section 213 puts a specific bar to the exercise of such right. In this context he relies on the Supreme Court decision in the case of Clarence Pais and Ors. v. Union of India, . It is his further contention that being a rank outsider the applicant is not entitled to be added in the pending suit in any capacity, particularly when the suit is one for partition and administration of joint estate inherited and owned by the parties to the suit. In support of this contention he relies on the Supreme Court decision in the case of Hem Nolini Judah v. Isolyne Sarojbashini Bose and Ors., .
9. The learned Counsel for defendant 1 has contended that the applicant is not claiming any right to the joint estate as a natural heir of deceased defendant 4, and he being an outsider is not entitled to be added in the pending suit. The contention of the learned Counsel for defendants 2 and 3 that by making this application the applicant is making an attempt to get a backdoor entry into the pending partition and administration suit, in the subject properties whereof the applicant has no manner of existing right, title, interest or share.
10. After hearing the learned Counsel for the parties, I am of the view that the applicant is required to be brought on record of the pending partition and administration suit. I so hold for the reasons recorded hereinafter.
11. The plaintiffs own case in the plaint is that deceased defendant 4 had a share in the suit properties. Whether because of the Will stated to be executed by her mother on April 18th, 1978 she was to loose such share is still an open question, and it is not supposed to be decided in this application. So the position is that had she been alive, she would have still enjoyed the right to contest the suit to establish her share, if any, in the properties sought to be partitioned. Being a Hindu female on her dying intestate her heirs specified in the Hindu Succession Act, 1956 would have contested the suit on being substituted. But the applicant claims that she died testate, and he is the sole executor of her last Will and testament. The question therefore is since probate of the Will stated to be executed by deceased defendant 4 has not been granted as yet, whether the applicant is entitled to step into her shoes for contesting the pending partition suit.
12. The character of an executor as such has been described by Section 211 of the Succession Act, 1925. It says that the executor of a deceased person is the legal representative of such deceased person for all purposes. It is well settled that an executor derives his title from the Will by which he is so appointed, and not from the probate, which, when granted (as provided in Section 227 of the Act) establishes the Will from the death of the testator, and renders valid all intermediate acts of the executor as such.
13. The prohibition of Section 213(1) of the Succession Act, 1925 is that an executor qua executor is not entitled to establish in any Court any right claimed under the related Will so long as the competent Court does not grant probate of such Will. An executor as defined in Section 2(c) of the Act is the person to whom the execution of the last Will of a deceased person is, by the testator's appointment, confided. It is a moral duty cast on the executor, and it remains as such so long as the executor does not enter into his office. Once he takes positive steps to protect the estate or applies for probate, he enters into the office, and the duty then assumes the character of a legal duty to be discharged by him as legal representative of the deceased person. While till grant of probate the executor as such cannot establish any right claimed under the Will, he however, is not supposed not to discharge his duties as the legal representative of the testator. In the discharge of his duties he can definitely step into the shoes of the testator and act as legal representative in any case or proceeding pending in any Court. By doing so he does not take any step to establish any right claimed under the Will; he also does not make any attempt to establish his legal character, which he need not establish at all in view of recognition given to it by Section 211 of the Act. By seeking his substitution in the pending case or proceeding in place and stead of the testator the executor neither claims any right under the Will, nor seeks to establish such a right in the Court before which the case or proceeding is pending. What he wants to establish is the right of the testator in the property, which is the subject-matter of the pending litigation, and to establish such right not on the basis of the Will, but independent of the Will.
14. My view being as noted above, I am unable to accept any of the contentions raised by the parties who are opposing this application. The decisions cited at the Bar, on the facts of the case, arc totally misplaced. In Hem Nalini's case Section 213 was interpreted by the Supreme Court in the context of a right set up by the legatee, who obtained letters of administration, over a property stated to have been acquired by the testatrix as legatee of a Will probate whereof had not been taken out. In Clarence Paw's case while deciding the question regarding constitutional validity of Section 213 the Supreme Court held that its Sub-section (1) prohibits recognition of rights as an executor or legatee under a Will without production of a probate and sets down a rule of evidence and forms really a part of procedural requirement of the law of forum; and that the Bar imposed is only in respect of the establishment of the right as an executor or legatee and not in respect of the establishment of the right in any other capacity; and further that the Section does not prohibit the Will being looked into for purposes other than those mentioned in it. In the present case the applicant seeks his addition in the suit in place and stead of the testatrix as her legal representative. In my view the plaintiff was under an obligation to take steps for substitution. Since the plaintiff refused to take the necessary steps, the applicant has taken out this application, and I find that in the interest of justice such application is required to be allowed.
15. As a result this application succeeds. It is hereby ordered that the applicant shall be added in the suit by way of substitution for deceased defendant 4. All consequential steps shall be taken and completed by the plaintiff and the departments concerned of this Court within eight weeks from date. In the facts and circumstances of the case I am of not inclined to make any order or costs in favour of the applicant.