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2. The four other executors of Kumudini's will however made an application in the rent suit on 12th January 1922. In that application they disclosed Kumudini's will and made a statement that they only were the executors under that will. They claimed to be substituted in the place of Kumudini as her legal representatives, and prayed for such substitution. In the body of the application (Ex. A-II-30) they stated that Abani and Ananga were not necessary parties. The plaintiffs' pleader asked for and obtained time to consider his position in regard to that application. Ultimately that application was lost sight of and the Court granted a decree for rent against the parties then on record, namely Abani, Ananga and Kiranbala on 23rd March 1923. Abani was admittedly not a necessary party. The tenure was sold in execution of this decree under the procedure of Chap, 14, Ben. Ten. Act, and was purchased by the plaintiffs on 5th April 1923. After an unsuccessful application by Abani and Ananga to set aside that sale, the sale was confirmed on 21st July 1924 and the sale certificate was issued to the plaintiffs on 27th September 1924. The decree in the rent suit and the sale in execution thereof was held before the probate of Kumudini's will had been granted. The probate of that will was granted to Ananga on 9th May 1924. 3. The question on which this appeal hinges is whether all the tenure holders of the said tenure were parties to the rent decree and in the execution proceedings. If that was so the entire tenure has passed to the plaintiffs by their purchase at the court sale. If not, that rent decree would not have the effect of a rent decree in terms of the Bengal Tenancy Act, but would have the effect of a money decree, effective only against Kiranbala and the right, title and interest of that judgment-debtor only would pass to them. If the will of Kumudini was operative to pass eight annas share of the tenure to the deity Kumudeswar Mahadev, the plaintiffs would then get by their purchase at the said auction sale only the eight annas interest of Kiranabala. These positions are admitted by the parties and are also in accordance with law. If, however, by the will of Abinash a life-estate only had been conferred on Kumudini she would have then no power to give the tenure to the said idol and her executors would not be necessary parties to that rent suit on her death. On her death the same would vest in Ananga by the terms of Abinash's will and no matter whether Ananga had a life- estate or an absolute estate therein he would represent after Kumudini's death the eight annas share of the tenure which belonged to Abinash. The decree passed in the rent suit would be then effective against the tenure and the court sale held in execution thereof would consequently pass to the purchasers the whole tenure and the plaintiffs would be entitled to succeed in this suit. If however Kumudini had an absolute estate in that tenure under her husband's will further questions would arise. We would therefore take up the question of the construction of Abinash's will.

5. We have stated before that by her will Kumudini had appointed five executors. While Rent Suit No. 8 of 1921 was pending four of her executors, Jitendra Mohan Bose and the Ghoshes applied for probate and the other executor, Ananga, was at first opposing the grant. The said four executors ultimately renounced, and probate was granted to Ananga only. This was after the decree had been passed in Bent Suit No. 8 of 1921 and the tenure had been sold in execution thereof. At all material stages of that rent suit and the following rent execution none of the executors named in her will had obtained probate. Though in their application filed in the rent suit by the four executors Jatindra Nath Bose and the Ghoshes on 12th January 1922 (Ex. A) they had stated that they were in possession of the estate on Kumudini there was no evidence before the Court in support of that statement, as that application was not supported by an affidavit. The question therefore is whether the executors could at that stage be substituted in that suit as the legal representatives of Kumudini. In our opinion they could not. If they had been substituted and a decree obtained that decree would not have bound the estate of Kumudini as they had not then obtained probate. It is well settled that an executor who has not obtained probate can file a suit as plaintiff, Mayappa Chetty v. Supramanian Chetty ('16) 3 A.I.R. 1916 P.C. 202, but he must obtain probate before the decree or even ear Her if he is called to prove his representative character at an earlier stage (Williams on Executors, Vol, I, p. 192, Edn. 12). But an executor who has not obtained probate can be effectively sued as defendant only when he had intermediated with the estate of the testator: Mohamadin Mohideen Hadjiar v. Pitchey (1894) 1894 A.C. 437, Lal Behari v. Nagendra Nath ('15) 2 A.I.R. 1915 Cal. 599 and Lakhya Dassya v. Uma Kanta ('10) 14 C.W.N. 256. No doubt an executor derives his title from the will and probate is the only effective evidence of his title. He can act before probate and subsequent probate validates these intermediate acts. (Section 227, Succession Act, 39 of 1925.) But the provisions of that section do not apply to cases of representation in suits: Lakhya Dassya v. Uma Kanta ('10) 14 C.W.N. 256 at page 258.

6. For these reasons we cannot agree with the observations in Cherag Ali Sarkar v. Nawab Khajeh Habibulla that the four executors who had made the application, Ex. A, in the rent suit ought to have been brought by the plaintiffs on the records of the rent suit on Kumudini's death as her legal representatives. We do hot also feel the force of the observations made therein that the deity Kumudeshwar Mahadev ought to have been made a party. The right of the deity could not be established without probate, and at all material times in the progress of that rent suit probate had not been granted. Besides that, there was no evidence that the executors had given their assent to the legacy in favour of the deity. The deity was therefore out of the picture at that stage. We cannot therefore hold that the estate of Kumudini was not represented in the rent suit simply because the executors named in her will had not been substituted in her place in that suit. On her death her son Abani and her grandson Ananga were substituted in her place. Ananga had no status except in his character as her executor and we have already held that not having obtained probate while the rent suit was pending he could not be substituted in that suit in Kumudini's place. The same reasons apply to his being made a party in the resulting execution proceedings. Abani was Kumudini's heir-at-law and would have been her legal representative if she had died intestate. Could he then have been brought on the record of the rent suit as her legal representative seeing that although she had left a will by which she had appointed other persons as executors, probate of the will had not been granted then. We are of opinion that he could not, and this view of ours is supported by the decision of a Division Bench in Harish Chandra Biswas v. Puridas Das ('10) 12 C.L.J. 561. In these circumstances two courses were open to the plaintiffs in the rent suit when Kumudini died, either to apply for postponement of the case till probate was granted to Kumudini's will and after that event to substitute the executor or executors who obtained probate, or if that was not feasible or desirable, to apply for the appointment of an administrator ad litem under Section 251, Succession Act, (39 of 1925) and to substitute the person so appointed in Kumudini's place. As they did not follow either of these oourses the decree obtained by them would not bind the estate of Kumudini and accordingly 8 annas share in the tenure taluk Biswanath Roy would not have passed to them at the court sale.