BINAPANI KAR CHOWDHURY versus SRI SATYABRATA BASU AND ANR.

Citation: [2006] SUPP. 2 S.C.R. 758 · Decided: 16-05-2006 · Supreme Court of India · Bench: B.P. SINGH · Disposal: Disposed off

Judgment (excerpt)

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BINAPANI KAR CHOWDHURY 
v. 
SRI SA TY ABRA TA BASU AND ANR. 
MAY 16, 2006 
[B.P. SINGH AND R.V. RA VEENDRAN, JJ] 
Succession Act. 1925-Section 213-Title suit by testator of will 
questioning validity of sale deed in favour of the defendant-Death of 
testator during pendency of the suit-Substitution of executor/Legatee of the 
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will of the deceased, as legal heir·-Pendency of suit without decision for a 
long time- -Prayer for early hearing rejected by courts below on 1he ground 
that the suit could nut be decided till the Will was probated--Held: Section 
213 bars a decree or final order in a suit which involves a claim as an 
executor or a legatee in the absence ofprubate of the Will--- In view of long 
D pendency of the suit and in view of the fact that the executor/legatee seems 
to be deliberately protracting the probate proceedings. trial court is directed 
to deliver judgment in the suit-If suit is decreed, the same to come into effect 
only after producing the probate---Code of Civil Procedure. 1908--0rder 22 
Rule 3. 
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Plaintiff filed a title suit against the appellant-defendant questioning 
the validity of the sale deed executed in favour of the appellant. During 
pendency of the suit, the plaintiff died. Respondent No. 1 was brought 
on record as legal representative of the deceased on the basis of a Will. 
The suit was pending without a decision. Appellant filed application for 
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early hearing on the ground that respondent No. 1 was deliberately 
prolonging probate proceeding. The application was rejected by trial 
court on the ground that the suit could not be disposed of till the probate 
was granted. Applicant's revision petition thereagainst was also dismissed 
by High Court on the same ground. Hence the present appeal. 
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Disposing of the appeal, the Court 
HELD: 1. Section 213 of Indian Sucession Act, 1925 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 
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obtained. 1762-D-El 
758 
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BlNAPANl KAR CHOWDHURY v. S.S. BASU 
759 
Mrs. Hem Nolini Judah v. Mrs. lso/yne Saro) bashini Bose, AIR 
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(1962) SC 1471, relied on. 
2. 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 
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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 
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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 died 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 has not been 
granted by a competent court. [763-A-D) 
2.1. The present suit, wherein the validity of the sale deed 
executed in favour of the appellant by· the plaintiff is. questioned, has 
been pending without a decision for more than a decade. The first 
respondent has not even chosen to appear in this appeal nor explained 
the delay in securing probate, thereby lending credence to the claim 
of the appellant that the first respondent is deliberately protracting the 
probate proceedings. (764-B-C) 
2.2. Therefore, with a view to do complete justice between the 
parties, it is appropriate to direct the trial court to proceed to hear 
arguments and deliver judgment in the suit. Nothing further will be 
required, if the suit is to be dismissed. But if the suit is to be decreed, 
the trial court should make it clear that the judgment and decree will 
come into effect only on the first respondent obtaining and producing 
the probate of the will, and till then the decree should be considered 
only as provisional and not to be given effect. [764-C-E] 
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Arijit Mullick v. Corporation 

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