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26. On the other hand, the observations in Binapani Kar are worthy of reproduction and the same are extracted below :

4. Section 213 of the Succession Act ("the Act" for short) provides as to when the right of the executor or legatee is established. Sub-

section (1) thereof provides that no right as executor or legatee can be established in any court 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 the Will annexed). It is not in dispute that the said section applies in the case of Wills made by a Hindu who is a resident of Calcutta. The trial court and the High Court have proceeded on the basis that having regard to Section 213 of the Act, the suit cannot be decided unless the executor of the Will produces the probate. Section 213 clearly creates a bar to the establishment of any right under a Will by the executor or legatee unless probate or letters of administration of the Will have been obtained. This Court in Hem Nolini Judah v. Isolyne Sarojbashini Bose [1962 Supp (3) SCR 294 : AIR 1962 SC 1471] held as follows:

(SCR p. 303) "The words of Section 213 are not restricted only to those cases where the claim is made by a person directly claiming as legatee. The section does not say that no person can claim as a legatee or as an executor unless he obtains probate or letters of administration of the Will under which he claims. What it says is that no right as an executor or legatee can be established in any court of justice, unless probate or letters of administration have been obtained of the Will under which the right is claimed, and therefore it is immaterial who wishes to establish the right as a legatee or an executor. Whosoever wishes to establish that right, whether it be a legatee or an executor himself or somebody else who might find it necessary in order to establish his right to establish the right of some August 26, 2024 Shraddha Talekar PS MUJIBUR REHMAN - APPEAL 126 OF 2023 - 26-08-2024-F.DOC legatee or executor from whom he might have derived title, he cannot do so unless the Will under which the right as a legatee or executor is claimed has resulted in the grant of a probate or letters of administration."
5. Therefore, where the right of either an executor or a legatee under a Will is in issue, such right can be established only where probate (where an executor has been appointed under the Will), or letters of administration (where no executor is appointed under a Will), have been granted by a competent court. Section 213 does not come in the way of a suit or action being instituted or presented by the executor or the legatee claiming under a Will. Section 213, however, bars a decree or final order being made in such suit or action which involves a claim as an executor or a legatee, in the absence of a probate or letters of administration in regard to such a Will. Where the testator had himself filed a suit (seeking a declaration and consequential reliefs), and he dies during the pendency of the suit, the executor or legatee under his Will, can come on record as the legal representative of the deceased plaintiff under Order 22 Rule 3 CPC and prosecute the suit. Section 213 does not come in the way of an executor or legatee being so substituted in place of the deceased plaintiff, even though at the stage of such substitution, probate or letters of administration have not been granted by a competent court.
6. However, there appears to be some divergence in views on the question whether a decree can be passed in the absence of probate (or letters of administration), where the suit or action has been initiated by the testator himself (and not by anyone claiming a right as the executor or legatee under a Will), and the executor/legatee subsequently comes on record as the legal representative on the death of the testator. One view is that after the death of the testator, when an executor or a legatee comes on record and proceeds with the suit, he is trying to enforce his right under a Will and, therefore, Section 213 would come into play and the probate or letters of administration will have to be obtained before the judgment is delivered (see Arijit Mullickv. Corpn. of Calcutta [(1979) 2 Cal LJ 426] ). The other view is that Section 213 will not apply as the suit was not filed to establish any right of an executor of legatee under a Will, and that as the testator himself having filed the suit, the issue in the suit is only about the right claimed by the plaintiff testator and not about the right claimed by the executor/legatee under the Will (see Gobinda Ballav Chakraborty v. Biswanath Mustafi [AIR 1980 Cal 143 : (1979) 2 Cal LJ 325] ). We do not propose to examine this question in this appeal, August 26, 2024 Shraddha Talekar PS MUJIBUR REHMAN - APPEAL 126 OF 2023 - 26-08-2024-F.DOC as the respondent is unrepresented, and this appeal can be disposed of on the special facts and circumstances of this case.