Punjab (2004) 7 SCC 505.
The right of an executor to get himself substituted in a pending proceeding has been
considered in Anjali Mullick ... view of the
decisions referred to above, the executor can always substitute himself in the pending proceeding
even though at the stage of such substitution
party.
The opposite party was also appointed as the Executor of the Will. The
Executor has the right to act on behalf of the estate ... same premises number. The onus is on
8
the opposite party (substituted Executor) to prove that he could maintain
the suit for eviction
Will wherein Sri Shyamal Samadder,
the applicant for substitution who is the sole-executor and beneficiary. The application
has been affirmed by Sri Shyamal Samadder ... that the opposite party cannot make any objection
against the substitution by the executor. Therefore, the application for substitution is
allowed. If the opposite party
will appointing one of this son
as an executor but the said executor was substituted in his personal
capacity as one of the legal heir
legatee and not an executor under
the will. It is true that where an executor dies, his
heirs cannot be substituted because the executor
possessed ... petitioner that
since none of the executors had come forward to
act as executors and in view of the erstwhile
advocate filing a petition
cannot bind the parties.
In case of Sambhu Prasad Agarwal (supra) the
executor appointed under the will filed the probate
proceeding, which was subsequently converted ... legatee and not
an executor under the will. It is true that where
an executor dies, his heirs cannot be substituted
because the executor possessed
grant
of probate and letters of administration cannot be revived
by substitution since executors or administrators are
appointed in personem. Their duties are limited ... executor or an administrator may be
pursued against the estate in other forms or fresh
proceedings, they cannot under common law claim
substitution
died on 7th
December, 2012. An application for substitution has been taken
out for substituting the executor to the Will left by the sole
petitioner ... substitution, we find that
the applicant has not made any prayer for bringing the legal heirs
of the deceased on record by way of substitution
These two applications are by one of the surviving co-
executors for substituting his name in place and stead of
respondent No.1/executrix
substitution made by the impugned order wherein both the executor and the
legatee have been substituted after the death of the testator, i.e. decree ... dispute between the executor and a legatee and upon
consideration of the situation both the executors and the legatee have been
substituted in place
