Bombay High Court

Mujhibur Rehman Haji Israr Alam ... vs Noorjahan Begam Haji Israr Alam ... on 26 August, 2024

Author: G. S. Kulkarni

Bench: G. S. Kulkarni

2024:BHC-OS:12986-DB

                                                            MUJIBUR REHMAN - APPEAL 126 OF 2023 - 26-08-2024-F.DOC


                                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      ORDINARY ORIGINAL CIVIL JURISDICTION

                                               APPEAL NO. 126 OF 2023
                                                          IN
                                      INTERIM APPLICATION (L.) NO. 8532 OF 2020
                                                          IN
                                              SUIT (L.) NO. 1011 OF 2014
                                                        WITH
                                      INTERIM APPLICATION (L.) NO. 10139 OF 2023
         Digitally
         signed by
                                                          IN
         SHRADDHA
SHRADDHA KAMLESH
KAMLESH TALEKAR
                                               APPEAL NO. 126 OF 2023
TALEKAR  Date:
         2024.08.26
         18:36:38
         +0530
                       Mujibur Rehman Haji Israr Alam Siddiqui                           ... Appellant/Ori.
                                                                                         Defendant No. 4
                                 Versus

                       1. Noorjahan Begum Haji Israr Alam Siddiqui
                       2. Dr. Nazia Shad Siddiqui
                       3. Mohd. Shad Haji Israr Alam Siddiqui
                       4. Mohd. Aslam Haji Israr Alam Siddiqui
                       5. Haji Salauddin Haji Israr Alam Siddiqui
                       6. Islahuddin Haji Israr Alam Siddiqui
                       7. Shah Alam Haji Israr Alam Siddiqui
                       8. M/s. Hilton Infrastructure,
                            A Partnership Firm
                       9. Dukh Singh D/o. Dharam Singhji Chouhan
                       10. Shamsuddin Alli Hussain Khan
                       11. ICICI Bank, ICICI Bank Limited
                       12. Khushnuda Begum
                                                                                         ... Respondents/
                       13. Afsana Begum
                                                                                         Proposed
                       14. Kadia Begum                                                   Defendants
                                                                   ***

                       Mr. B.P. Pandey a/w. Ms. Ridhima Mangaonkar, Shyam K. Tripathi i/b
                       Vivek Pandey, for Appellant.
                                                               Page 1 of 23
                                                              August 26, 2024
      Shraddha Talekar PS




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                                                      MUJIBUR REHMAN - APPEAL 126 OF 2023 - 26-08-2024-F.DOC



                 Mr. D. A. Barot, for Respondent No. 1 in IAL/10139/2023.

                 Mr. Anshul Anjarlekar i/b Raval Shah & Co., for Respondent Nos. 2 &
                 3.

                 Mr. Y. E. Mooman, for Respondent No. 6.

                 Ms. Dhamini Nagpal i/b Manilal Kher Ambalal & Co., for Respondent
                 No. 11 (ICICI Bank Ltd.).

                                          _______________________

                                          CORAM:              G. S. KULKARNI &
                                                              SOMASEKHAR SUNDARESAN, JJ.

Reserved on : July 8, 2024 Pronounced on : August 26, 2024.

_______________________

Oral Judgement (Per, Somasekhar Sundaresan J):

1. This Appeal is directed against an order dated 13 th March, 2023

("Impugned Order"), by which a Learned Single Judge of this Court allowed

the replacement of the deceased original Plaintiff in Suit No. 1011 of 2014,

with certain individuals who purport to claim through a Will, as the legal

heirs of the deceased original Plaintiff.

2. The Impugned Order is one of the many strands in a web of litigation

among the parties. It would be fruitful to examine the background to the

litigation among the parties.

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Background and Context:

3. The Appellant, Mr. Mujibur Rehman Haji Israr Alam Siddiqui is the

son of Late Mr. Haji Israr Alam Mohd Nazir Siddiqui (" Late Mr. Alam").

The Late Mr. Alam's widow is Ms. Noorjahan Begum Haji Israr Alam

Siddiqui ("Mother"). Nine siblings who are the offspring of the Late Mr.

Alam, the Mother, and eight tenants of various properties, are parties to

various suit proceedings in this Court.

4. According to the Appellant, an oral partition and division pursuant to

a Family Settlement took place, initially on 11th July, 2000, and thereafter on

18th June, 2004 (collectively, "Family Settlement"). Various family members

are said to have acted upon such Family Settlement, even creating third-

party rights over the properties they were entitled to under the Family

Settlement. The Appellant has alleged that the Late Mr. Alam had illegally

and unilaterally revoked the Family Settlement by a revocation notice dated

5th March, 2014. According to him, the Late Mr. Alam also reneged on the

Family Settlement by alienating various properties.

5. These allegations were countered by the Late Mr. Alam. Other parties

who are said to have initially supported the Appellant are said to have

switched sides subsequently, opposing the Appellant and seeking the Late

Mr. Alam's forgiveness. The upshot of these developments is the institution

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and pendency of three Suits in this Court, namely:-

a) Suit No. 865 of 2014 (" Suit 865"), filed by the Appellant

challenging the revocation of the Family Settlement by the Late Mr.

Alam, and the allegedly violative alienation of properties covered by

the Family Settlement;

b) Suit No. 1011 of 2014 ("Suit 1011"), filed by the Late Mr. Alam,

seeking declaratory reliefs relating to ownership of suit properties

and appointment of a Court Receiver in respect of properties in the

possession of the Appellant; and

c) Suit (Lodging) No. 27343 of 2021 (" Suit 27343"), filed by Dr.

Nazia Shad Siddiqui ("Dr. Nazia Shad"), the daughter-in-law of the

Late Mr. Alam (sister-in-law of the Appellant), based on the

assertion that she is an executor of a purported Will dated 11 th

November, 2019 that had been made by the Late Mr. Alam.

6. Both, the Late Mr. Alam and Dr. Nazia Shad have alleged that the

Appellant has created bogus and fraudulent Family Settlements. In Suit

1011 (the suit instituted by the Late Mr. Alam), a Learned Single Judge of

this Court had passed an order dated 24 th July, 2014, directing the parties to

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maintain status quo in respect of the properties listed in Exhibit C of the

Plaint in Suit 865 ("Status Quo Order"). The Appellant had claimed that his

father had committed perjury by filing contradictory assertions on oath in

the aforesaid litigation. The Late Mr. Alam had taken out Chamber

Summons No. 217 of 2017 in Suit 1011 seeking to bring on record the fact

that third party interests exist on the properties. The Late Mr. Alam had

gifted properties to the Appellant's siblings. The Late Mr. Alam had also

formed a trust and transferred rights to certain properties to the trustees.

The Appellant filed Contempt Petition No. 72 of 2017 against Late Mr. Alam

for the alleged violation of the Status Quo Order.

7. On 20th October, 2020, Dr. Nazia Shad wrote to the Appellant, calling

upon him to implead her in Suit 865, in place and stead of the Late Mr.

Alam, who had passed away on 13 th May, 2020. The request was on the

premise that she was the beneficiary of the assets forming part of the suit

properties pursuant to a Will dated 11 th November, 2019. Dr. Nazia Shad

moved Interim Application No. 566 of 2021 in Suit 865 praying for being

joined as a Defendant in place of the Late Dr. Alam.

8. In Suit 1011, Dr. Nazia Shad, her husband Mr. Mohd Shad Haji Israr

Alam Siddiqui ("Mr. Mohd Shad", a sibling of the Appellant) and the Mother

filed Interim Application No. 8532 of 2020 (" IA 8532") to be made parties,

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in the capacity of Plaintiffs in place and stead of the Late Mr. Alam, the

Original Plaintiff, in the Suit and in all the motions and application relating

to the Suit. Dr. Nazia Shad claimed to now be the absolute owner (pursuant

to the Will) of certain properties that the Late Mr. Alam had sued for in Suit

1011.

9. It is IA 8532 in Suit 1011 that has been decided by the Learned Single

Judge vide the Impugned Order, allowing the replacement of the Late Mr.

Alam, the Original Plaintiff with the Mother, Dr. Nazia Shad and Mr. Mohd

Shad, as Plaintiff 1(a), Plaintiff 1(b) and Plaintiff 1(c) respectively in the Suit

and connected applications and motions. This Appeal (126 of 2023) is

directed against such replacement being permitted. Interim Application

(Lodging) No. 10139 of 2023 has also been filed by the Appellant in this

Appeal, seeking a stay of the Impugned Order.

Contentions of the Parties :

10. Mr. Pandey, learned counsel for the appellant submitted that the

Learned Single Judge failed to appreciate that while permitting the

impleadment of Respondent Nos. 1 and 2 (in this Appeal) to be added as

Plaintiff Nos. 1(a) and 1(b) in place of the deceased original Plaintiff and by

transposing the original Defendant No.6 as Plaintiff No. 1(c), the very nature

of the Suit underwent a significant change. According to him, the very

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nature of the cause of action and thereby, the nature of the Suit would stand

transformed by reason of the Impugned Order. The original Plaintiff had

made several allegations against the original Defendant No.6, who would

now himself become Plaintiff 1(c). The serious allegations originally levelled

by the deceased Plaintiff cannot be extinguished in this manner. The

deceased original Plaintiff had sought a declaration in Suit 1101, that among

other Defendants, Defendant No.6 would have no right, title or interest of

any nature whatsoever in respect of the suit properties. Mr. Pandey would

urge us to hold that by permitting such a Defendant to himself become a

Plaintiff, the very nature of the Suit would stand undermined.

11. As far as the other two newly incorporated Plaintiffs, i.e., Plaintiff 1(a)

and Plaintiff 1(b) are concerned, Mr. Pandey would submit that their

impleadment is based on the purported Will dated 11 November, 2019,

despite the validity of the very Will being under challenge in Suit 27343. By

bringing the Will on record in Suit 1101, a simple declaratory suit instituted

by the Late Mr. Alam for declaration of his title as the exclusive owner of the

properties, and consequential possession, would stand transformed into a

testamentary suit. Since these newly incorporated Plaintiffs would

administer and intermeddle with the suit properties, a declaratory suit is

being transformed into an administrative suit. Drawing our attention to the

newly inserted paragraphs 7A and 46A in the amended plaint in Suit 1101,

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Learned Counsel would submit that these Plaintiffs would take possession of

the suit properties, although the deceased original Plaintiff never amended

the Plaint to include such changes before passing away on 13 May, 2020.

The Late Mr. Alam had indeed filed a rejoinder dated 22 October, 2018

about having resolved his grievances against Mr. Mohd Shad, without

incorporating the contents of such rejoinder in the Plaint. The Late Mr.

Alam did not incorporate such contents of the rejoinder in the purported

Will dated 11 November, 2019. This is one more ground cited by Mr. Pandey

to argue that such changes would be symptomatic of the nature of the Suit

undergoing a change.

12. By drawing our attention to paragraph 46B, Mr. Pandey would submit

that by permitting the introduction of two new Plaintiffs and the

transposition of Defendant No. 6 as a fellow Plaintiff, the effect of the

purported Will, which was not in existence when the Suit was instituted, is

being given effected to, which is yet another pointer to a change in the

nature of the Suit.

13. Mr. Pandey also submits that the Mother was never joined in the Suit

originally and is now being brought in purportedly just to give moral

support to the other two Plaintiffs, which is nothing but an academic

exercise. A person without a claim to any interest to a suit property, cannot

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be a Plaintiff in the Suit. The Mother had entered into Consent Terms with

the Appellants in Suit 865 which has been brought on record by the Mother

in her affidavit in reply dated 6 January, 2024 filed in the present Appeal.

This reply would show that she had refused to prosecute Suit 1101 and that it

had been filed without her knowledge and consent. For all these reasons, it

was submitted that the Mother simply cannot be added as a Plaintiff.

14. As regards Dr. Nazia Shad and Mr. Mohd Shad, Mr. Pandey would

submit that the Learned Single Judge had acknowledged that the outcome of

Suit 1101 may have a direct bearing on Suit 27343. The purported Will

covers 60 properties and only 12 were bequeathed to Dr. Nazia Shad and as

such, her entitlement would be restricted only to the extent of the 12

properties. Consequently, it would not be feasible to permit her to prosecute

the entire Suit. There being no capacity to prosecute a suit in part, the

Impugned Order is indefensible in allowing Dr. Nazia Shad to be joined as

Plaintiff in Suit 1101. Mr. Pandey would also submit that the affidavit in

rejoinder filed by the deceased original Plaintiff is being looked at

selectively. A full reading of the said affidavit in rejoinder would show that

the Late Mr. Alam had formed a trust and appointed Dr. Nazia Shad and Mr.

Mohd Shad as trustees of the said trust, only to cancel the said trust later,

pursuant to which, their rights as trustees also got cancelled. Neither of

these two individuals can claim to be unaware of the cancellation of the trust

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since they were signatories to the cancellation, along with the deceased

original Plaintiff.

15. Mr. Pandey would also submit that the exercise of discretion by the

Learned Single Judge to allow the amendment with the modification was

not correct to the entire Suit 1101 being rendered a futile exercise since it

would now seek a declaration in the name of a dead person. Assuming a

decree came to be passed in favour of the deceased, it was unclear as to who

would execute the said decree. However, by permitting the amendment, the

Learned Single Judge has wrongly expanded the scope for fresh litigation

and thereby increased the multiplicity of proceedings. Mr. Pandey would

also emphasize that the purported Will itself has been assailed as an

instrument in contempt of the Status Quo Order. On such Contempt

Petition, vide an order dated 17 April, 2023, a notice had been issued by this

Court, therefore, it is inappropriate, Mr. Pandey would argue, to permit the

amendment to the Plaint based on the contents of the contemptuous

instrument like the purported Will.

16. Mr. Pandey would cite Asian Hotels (North) Limited Vs. Alok Kumar

Lodha & Ors. ("Asian Hotels")1 to submit that when the cause of action

undergoes a change, the court must not routinely allow amendments. In

(2022) 8 SCC 145

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that case, the Delhi High Court, had, in reliance on Order I Rule 10 of the

CPC, allowed applications permitting the original Plaintiff to amend the suit

and ordered impleadment of Banks who were mortgagees. In a challenge

against such ruling, the Supreme Court found that the entire cause of action

underwent a change by the amendment and consequently, ruled that it

would not be permissible to allow such an amendment.

17. Mr. Anshul Anjarlekar, Learned Counsel on behalf of Respondent

Nos. 2 and 3, i.e., the new Plaintiff Nos.1(b) and 1(c) submitted that where a

testator has filed a suit seeking declaratory reliefs, but dies during the

pendency of such Suit, the executor or legatee under the Will can come on

record as a legal representative of the deceased Plaintiff. Such executor and

legatee can also institute suit for their own rights under the Will in question,

and all disputes in connection with the Will that need to be tried, would be

dealt with as part of the trial in the suit. In support of such proposition,

reliance was placed on Binapani Kar Chowdhury Vs. Sri Satyabrata Basu &

Anr.2 ("Binapani Kar"), Geeta Patel D'Souza Vs. Girnar Apartments Co-

operative Housing Society Ltd., Mumbai & Ors. 3 ("Geeta Patel") and Suresh

Singh and Anr. Vs. Dr. Raja Ram Singh & Ors. 4("Suresh Singh").

(2006) 10 SCC 442

2019(3) Mh.L.J. 745

1998 SCC OnLine Pat 127

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18. Likewise, Mr. Anjarlekar would submit that the provisions enabling

adding or striking of parties would also include transposing of parties in

terms of Order I Rule 10(2) of the Code of Civil Procedure, 1908 (" CPC").

The transposition of a Defendant as a Plaintiff may be made only when the

Defendant has some interest in common in that of the deceased Plaintiff and

a person whose interest is totally adverse to the Plaintiff cannot be permitted

to be transposed as the Plaintiff. On facts, he would submit that in the

instant case, the adverse relations between the deceased original Plaintiff

and the original Defendant No.6 have been resolved and such resolution also

forms part of the record in terms of the contents in the affidavit in rejoinder

filed by the deceased original Plaintiff. Towards this end, Learned Counsel

would rely upon the judgments rendered in Sarat Chandra Barik and Anr.

Vs. Manoranjan Barik and Ors. 5 and Piyush Hasmukhlal Desai Vs.

International Society for Krishna Consciousness (ISKON) 6

Findings and Analysis :

19. We have carefully considered the Impugned Order in the light of the

submission made by Learned Counsel for the parties. The Learned Single

Judge dealt with an assertion on behalf of the Appellant that the Mother is

neither a necessary party nor a proper party to Suit 1101, and therefore must

2015 SCC OnLine Ori. 354

2015 SCC OnLine Ori. 3

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not be joined. The Learned Single Judge, in our opinion, rightly, ruled that

being the widow of the Late Mr. Alam, the Mother would, at the least, be a

proper party, even if not a necessary party. Besides, she was purportedly the

legal heir and therefore, there was no impediment to permitting her to be

Plaintiff 1(a) in place and stead of the Late Mr. Alam. Needless to say, such

permission is not at all an expression of any opinion on any right of the

Mother to any property, which too has been explicitly set out in the

Impugned Order. It merely places her in a position of a Plaintiff in Suit

1101, to which she was hitherto not a party.

20. As regards Dr. Nazia Shad, the Appellant alleged that she could at best

prosecute the Suit 27343 to the extent of the properties mentioned in the

Will. In our opinion, the Learned Single Judge has rightly held that to what

extent Dr. Nazia Shad is entitled to any property is a matter of merits, while

IA 8532 in Suit 1101 was merely an application for effecting amendments in

view of the ex facie contents of the Will. It was noted that under the Will,

Dr. Nazia Shad had been empowered to prosecute Suit 1101. As an executor

of the purported Will, she was entitled to prosecute proceedings and defend

proceedings filed by or against the Late Mr Alam.

21. As regards, Mr. Mohd Shad (husband of Dr. Nazia Shad), it had been

pointed out on behalf of the Appellant that the Late Mr. Alam had levelled

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serious allegations against this son, and in that light, it would not be

possible to routinely permit him to be made a Plaintiff in place of the Late

Dr. Alam. Upon a review of the plaint in Suit 1101, the Learned Single Judge

noted and ruled that in Paragraphs 44 and 45 of the Plaint, the Late Mr.

Alam had categorically stated that Mr. Mohd Shad had profusely expressed

regret for having joined hands with the Appellant and had sought

forgiveness of the Late Mr. Alam and the Mother, and that the Late Mr.

Alam had decided to forgive him. The Plaint also disclosed that the Late Mr.

Alam had affirmed that Mr. Mohd Shad had given true and correct accounts

of whatever business they had done on behalf of the Late Mr. Alam, and had

also furnished the documents pertaining to the Late Mr. Alam's properties

and the case papers of various litigation. In this view of the matter, the

Learned Single Judge ruled that there was no impediment in permitting Mr.

Mohd Shad to be joined as Plaintiff No. 1(c). Needless to say, such

permission is not at all an expression of any opinion on the merits of Mr.

Mohd Shad's claims to any property. It merely places him in a position of a

Plaintiff in Suit 1101.

22. Other amendments to the Plaint that were merely consequential to

such permission to bring the Mother, Dr. Nazia Shad and Mr. Mohd Shad as

plaintiffs, were naturally allowed in the Impugned Order. We do not see as

to why a different view needs to be take from what has been decided by the

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Learned Single Judge, and therefore see no reason to interdict the

Impugned Order.

23. We note that the Learned Single Judge has also categorically ruled

that the prayer to routinely replace the word "Plaintiff" with the word

"Plaintiffs", in all the prayer clauses of the Plaint and various Notices of

Motion and Chamber Summons in Suit 1011, is not acceptable. On this

count, the Learned Single Judge agreed with the Appellant and has ruled

that the substituted plaintiffs cannot seek a declaration of absolute title over

the suit properties in their favour in the garb of being plaintiffs. It is evident

from the Impugned Order that the new plaintiffs fairly conceded that in

these prayer clauses, the expression "Plaintiff" may instead be replaced by

the words "Original Deceased Plaintiff". Therefore, Suit 1011 would only

lead to determination of whether the suit properties would form part of the

estate of the Late Mr. Alam and not automatically entitle the three new

Plaintiffs to the properties. In this view of the matter, the Impugned Order

truly does not change the character of Suit 1011 and there is also no change

to the cause of action being pursued. Truly, the introduction of the legal

heirs cannot change Suit 1011 into a testamentary suit or an administrative

suit. It remains a declaratory suit and the outcome would declare what the

estate of the Late Mr. Alam would consist of.

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24. We are unable to agree that Asian Hotels is of any assistance to the

Appellant. In Asian Hotels, the Delhi High Court had originally been

presented with a suit by licensees under a leave and license agreement to

declare that the revocation of the license granted to them by the licensor-

defendant was illegal since the licenses were claimed to be irrevocable and

perpetual. The High Court had allowed the plaintiff therein to amend the

suit to include reliefs being sought against banks to whom the properties

had been mortgaged by the licensor. The licensor had responded in the

High Court that the disputes were exclusively referable to arbitration and

consequently, also filed an application under Section 8 of the Arbitration

and Conciliation Act, 1996. While these proceedings were pending, the

licensees sought to amend the plaint to challenge mortgages created by the

licensor in favour of banks to whom the properties had been mortgaged and

sought a declaration that the mortgages should be regarded as illegal. It is

in this context that it was held by the Supreme Court that the original

plaintiff who was not a party to the mortgage could have had no right to seek

declaratory relief against the mortgagees and that such an amendment

would constitute a fundamental change in the nature of the suit.

25. It was also found that the license agreements themselves recognised

existing encumbrances and the freedom to create further encumbrances.

Taking all these factors into account, Supreme Court ruled that when the

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mortgage had been created, the licensees were not even in the picture.

Therefore, it was a totally different and new cause of action that was sought

to be introduced in the garb of an amendment, in Asian Hotels. The factual

matrix in the matter at hand, is totally different. There is no new cause of

action that was not originally contained in the Plaint that is being

introduced. The Plaintiff who had instituted the suit has passed away and

the legal heirs found in the Will are being allowed to continue the

proceedings. The Learned Single Judge, in the Impugned Order has made it

abundantly clear that the original prayers would not be allowed to be

amended whereby the new Plaintiffs steal a march over the trial of whether

the Will is valid. Towards this end, the Impugned Order makes it clear that

the prayers would remain with regard to the rights and entitlement of the

deceased original Plaintiff. Consequently, the outcome of suit 1011 would

only determine the status of the estate of the Late Mr. Alam, and would not

automatically lead to a decree in favour of the new Plaintiffs in their

personal capacity. The Impugned Order merely enables the new Plaintiffs to

pursue the interests of the estate of the Late Mr. Alam, and nothing more. It

may be the Appellant's argument that such legal heirs are not truly entitled

as a matter of fact and that the Will is illegal but that is an assertion that is

subject matter of trial in other proceedings that form part of web of litigation

among the parties. Suit 1011 would merely result of determination of the

composition of late Mr. Alam's estate. The other litigation would determine

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who is entitled to which portion of the estate. Therefore, we have no

hesitation in rejecting the submission made in reliance of Asian Hotels.

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

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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,

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as the respondent is unrepresented, and this appeal can be disposed of on the special facts and circumstances of this case.

[Emphasis Supplied]

27. Likewise, the observations of a Division Bench of Patna High Court in

Suresh Singh are instructive. The following extracts are noteworthy :

4. The sole point which falls for consideration in this revision application is as to whether a legatee under unprobated Will can be impleaded as party upon the death of testator or not, who was a party to the suit and section 213 of the Act debars a court from recognising and impleading a legatee under unprobated Will unless and until a probate or letters of administration has been obtained in respect of the Will under which he claims. For deciding this question, it would be necessary to refer to the provisions of sections 211 and 213 of the Act, relevant portions of which are quoted hereunder:

"211. Character and property of executor or administrator as such--.(1) The executor or administrator, as the case may be, of a deceased person is his legal representative for all purposes, and all the property of the deceased person vests in him as such.'

"213. Right as executor or legatee when established.-- (1) No right as executor or legatee can be established in any Court of Justice unless a Court of competent jurisdiction in India was 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 an authenticated copy of the will annexed."

(Emphasis added)

5. It has to be seen whether the expression 'right' as used in section 213 is wide enough to include a right to prosecute a suit or proceeding or is the expression 'right' confined to the right to enforce a claim for which a suit or legal proceeding is brought. The language of section 213(1) is very clear and it says no right can be established in a court. Institution of a case is something different than establishment of a right. Section 213, in my view, does not preclude a person from instituting a case or setting up a defence on the basis of unprobated

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Will, but it only debars a person from enforcing the right claimed on the basis of unprobated Will unless and until a probate or letters of administration is obtained. According to section 211, an executor or administrator of a deceased person is his legal representative for all purposes and all the properties of the deceased vest in him as such. This question was considered by the Privy Council in the case of Meyappa Chetty v. Soona Navena Subramnaian Chetty (A.I.R. 1916 Privy Council, 202). In that case, letters of administration pendente lite was granted in favour of an Administrator in the year 1910 and thereafter he filed a suit in the year 1911 and during the pendency of the suit probate was granted in the year 1912. In those circumstances, a question had arisen whether before grant of probate a suit could have been filed to enforce the right claimed on the basis of a Will, and it was held that such a suit could have been instituted under law but no decree could be passed unless a probate is granted. It was laid down by their Lordships of the Judicial Committee as follows:--

"It is quite clear that an executor derives his title and authority from the will of his testator and not from any grant of probate. The personal property of the testator, including all rights of action, vests in him upon the testator's death, and the consequence is that he can institute an action in the character of executor before he proves the will. He cannot, it is true, obtain a decree before probate, but this is not because his title depends on probate, but because the production of probate is the only way in which, by the rules of the Court, he is allowed to prove his title. An administrator, on the other hand, derives title solely under his grant and cannot, therefore, institute an action as administrator before he gets his grant."

"It would seem, therefore, that an executor is not only the legal representative of his testator, but capable of instituting an action..."

***

13. In view of the foregoing discussions, I hold that a legatee or executor of an unprobated Will making a claim on the basis of the same can institute a suit or take a defence in a suit on the basis of such a

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Will, but his claim cannot be established in a court of law unless and until a probate or letters of administration is granted meaning thereby that neither any decree can be passed in favour of a plaintiff nor defence can be accepted in such a suit unless pr obate or letters of administration is obtained before its disposal. I also hold that if such a legatee or executor can institute a suit or set up a claim by way of defence, he can be allowed to be substituted in place of the testator or added as a party if he makes a claim on the basis of an Unprobated Will. Therefore, it is held that the court below has committed error of jurisdiction in refusing the prayer made on behalf of the petitioners, and thereby refusing to exercise jurisdiction vested in it under law. I am of the view that if the impugned order is allowed to stand, there will be failure of justice and irreparable injury would be caused to the petitioners if they are not permitted to be impleaded as party the suit is allowed to be disposed of in terms of the compromise and they would be required to challenge the decree by filing another suit leading to multiplicity of the suit.

[Emphasis Supplied]

28. At the risk of repetition, we note that it is apparent that the

permission granted to permit the new Plaintiffs to be brought on board is

not in any manner an expression of an opinion on the merits of the claims by

these parties. No injury would be occasioned by replacing the Late Mr. Alam

with the three new Plaintiffs. It would be truly inconvenient to adjudicate

Suit 1011 with the sole Plaintiff being dead and the purported legal heirs not

being allowed to prosecute the proceedings. The Mother is the widow of the

Late Mr. Alam; Dr. Nazia Shad is the purported executor of the purported

Will; and Mr. Mohd Shad, the husband of Dr. Nazia Shad, stands in the

same position, and indeed, prima facie, the Late Mr. Alam appears to have

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