On The Death Of Chandan Hazarika vs On The Death Of Banti Bhuyan
2022 Latest Caselaw 540 Gua

                                                              Page No.# 1/7

GAHC010188142021




                     THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                       Case No. : I.A.(Civil)/2353/2021

         ON THE DEATH OF CHANDAN HAZARIKA, HIS LEGAL HEIR SMTI
         MADHURI KALITA
         D/O LATE HARENDRA NATH KALITA, R/O CHANDMARI (C/O HAZARIKA
         HOUSE), GUWAHATI-781003, DIST- KAMRUP(M), ASSAM



         VERSUS

         ON THE DEATH OF BANTI BHUYAN
         HER LEGAL HEIRS

         1.1:PRADIP KUMAR BHUYAN
          S/O LATE RATNA KANTA BHUYAN
          P/R/O PUB-SARANIA
          GUWAHATI
          DIST-KAMRUP(M)
         ASSAM
         AND P/R/A FACULTY HIGHER SECONDARY SCHOOL COMPLEX
          NORTH GUWAHATI
          P.O.-IIT GUWAHATI
         ASSAM
          PIN-781039

         1.2:JOYDEEP BHUYAN
          S/O PRADIP KUMAR BHUYAN
          P/R/O PUB-SARANIA
          GUWAHATI
          DIST-KAMRUP(M)
         ASSAM
         AND P/R/A FACULTY HIGHER SECONDARY SCHOOL COMPLEX
          NORTH GUWAHATI
          P.O.-IIT GUWAHATI
         ASSAM
                                                                                             Page No.# 2/7

              PIN-781039

              1.3:SMTI. LOYA SINHA
               D/O PRADIP KUMAR BHUYAN
               P/R/O PUB-SARANIA
               GUWAHATI
               DIST-KAMRUP(M)
              ASSAM
              AND P/R/A FACULTY HIGHER SECONDARY SCHOOL COMPLEX
               NORTH GUWAHATI
               P.O.-IIT GUWAHATI
              ASSAM
               PIN-78103

Advocate for the Petitioner      : MR. B D DEKA

Advocate for the Respondent : MR S S SHARMA




                                     BEFORE
                    HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA

                                                ORDER

16.02.2022

Heard Mr. B. D. Deka, learned counsel representing the applicant as well as Mr. A. Sattar, learned counsel appearing for the respondent.

2. This is an application under Order 22 Rule 10 of the Code of Civil Procedure praying for substitution of legal heirs of the deceased appellant Late Chandan Hazarika in RSA 238/2014.

3. Mr. Sattar has objected to the prayer of the petitioner by filing a written objection. It has been submitted that the present petitioner Madhuri Kalita is not a legal heir of late Chandan Hazarika.

4. Mr. Sattar submits that Smti. Madhuri Kalita has claimed to be the legal heir of late Chandan Hazarika on the strength of a Will that was executed in her favour by late Hazarika. Mr. Sattar has pleaded that the probate proceeding is still going on and in such a circumstance, under the provisions of Section 213 of the Indian Succession Act, 1925, the petitioner has no right to be the legal heir of late Chandan Hazarika till a probate is granted in her favour.

5. Mr. Deka, per contra, submits that the definition of the words as mentioned in Section 2(11) of the Code of Civil Procedure is very wide and will include a person who seeks to represent the estate of the deceased on the basis of a Will executed in his favour by the deceased. Mr. Deka has relied upon one decision of the Supreme Court that was rendered in Binapani Kar Chowdhury v. Satyabrata Basu, Page No.# 3/7

(2006) 10 SCC 442 and another decision of the Patna High Court that was rendered in Smt. Saminta Devi vs Sri Dilip Kuma, reported in 2013 SCC Online Pat1102.

6. In the case of Binapani Kar Chowdhury (supra), it has been held as under:

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

8. Therefore, with a view to do complete justice between the parties, it is appropriate to direct the trial court (Civil Judge, Senior Division, Alipore), where TS No. 10 of 1995 is pending, 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. We dispose of this appeal accordingly making it clear that nothing stated above is an expression of any opinion on merits of the case."

7. In the case of Smt. Saminta Devi (supra), it has been held as under:

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"14. The Supreme Court in case of Custodian, Branches of BANCO National Ultramarino V. Nalini Bai (supra) had the occasion to deal with and interpret Section 2(11) of „the Code‟. The Court in paragraph-4 of the judgment held thus:- "4."Legal representative" as defined in Civil Procedure Code which was admittedly applicable to the proceedings in the suit, means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued. The definition is inclusive in character and its scope is wide, it is not confined to legal heirs only instead it stipulates a person who may or may not be heir, competent to inherit the property of the deceased but he should represent the estate of the deceased person. It includes heirs as well as persons who represent the estate even without title either as executors or administrators in possession of the estate of the deceased. All such persons would be covered by the expression "legal representative". If there are many heirs, those in possession bona P8/12 fide, without there being any fraud or collusion, are also entitled to represent the estate of the deceased."

15. The Himachal Pradesh High Court has also dealt with the said provision in case of Suraj Mani and Anr. V. Kishori Lal (supra) wherein the Court held that definition of legal representatives in Section 2(11) of „the Code‟ was wide enough and would certainly include a person who seeks to represent the deceased person on the basis of the Will said to be executed by the deceased in his favour.

16. In view of the above pronouncements, there cannot be any doubt about proposition that the legal representative within the meaning of Order XXII Rule 3 shall include such persons also who represent the estate of the deceased persons and may not be the legal heirs of such deceased persons. The question now arises as to whether the respondent could successfully claim to be the legal representatives of the deceased plaintiff on the basis of the registered Deed of Will executed by the said plaintiff, without the same having been probated. Before dealing with this aspect, it would be appropriate to refer to Section 211, 212 and 213 of the Indian Succession Act, 1925. Section 211 declares that the executor or administrator of a deceased person is his legal representatives for all purposes and all the property of the P9/12 deceased person vests in him as such. Section 212 provides that no right to any part of the property of a person who has died intestate can be established in any Court of justice unless letters of administration have been granted by a Court of competent jurisdiction. Section 213 of the Indian Succession Act reads as follows:-

"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 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 an authenticated copy of the Will annexed.

(2)This Section shall not apply in the case of Wills made by Muhammadans [or Indian Christians], and shall only apply-

(i) in the case of Wills made by any Hindu, Buddhist, Sikh or Jaina where such Wills are of the classes specified in clauses (a) and (b) of Section 57; and

(ii) in the case of Wills made by any Parsi dying, after the commencement of the Indian Page No.# 5/7

succession (Amendment) Act, 1962 (16 of 1962), where such Wills are made within the local limits of the [ordinary original civil jurisdiction] of the High Courts at Calcutta, Madras and Bombay, and where such Wills are made outside those limits, in so far as they relate to immoveable property situated within those limit.]"

17. Referring to Section 213 of the Indian Succession Act, it P10/12 is being contended on behalf of the petitioner in the present application that no right as executor or legatee can be established unless Court of competent jurisdiction has granted probate of Will under which the right is claimed. It has been strenuously submitted by learned counsel for the petitioner, as has been noted above, that in the absence of grant of probate of the Will, the respondent could not have claimed to be a legatee and his substitution is bad in the facts and circumstances of the case. This aspect had fallen for consideration before Supreme Court in case of Commissioner, Jalandhar Division and Ors. V. Mohan Krishan Abrol and Anr. reported in (2004) 7 SCC 505, reliance upon which has been placed by learned counsel for the Respondent.

The Supreme Court in paragraph-10 laid down the law as follows:- "10. A bare reading of Section 211 shows that the property vests in the executors by virtue of the Will and not by virtue of the probate. Will gives property to the executor; the grant of probate is only a method by which the law provides for establishing the Will. In the case of Kulwanta Bewa v. Karam Chand Soni it has been held that Section 211 provides that the estate of the deceased vests in the executor; that the vesting is not of the beneficial interest in the property; but only for the purposes of representation. In the case of Meyappa Chetty v. Supramanian Chetty the P11/12 Privy Council has held that an executor derives his title from the Will and not from probate. The personal property of the testator (including right of action) vests in the executor(s) on the death of the testator."

18. The Court further held in the same paragraph as follows:- "Section 213 acts as a bar to the establishment of rights under the Will by an executor or a legatee unless probate or letters of administration have been obtained. This bar comes into play only when a right as an executor or a legatee under Will is sought to be established. However, an unprobated Will can be admitted in evidence for collateral purposes in any other proceedings apart from probate proceedings. (See Cherichi v. Ittianam.) Therefore, on the demise of the testatrix, the said property vested in the executors."

19. Similar view has been taken by Punjab and Haryana High Court in case of Col. Adarsh Rattan and Ors. V. State Bank of India, Jalandhar (supra). In case of Jogendra Prasad alias Bhola and Ors. Vs. Kamlesh Kumar and Ors. reported in A.I.R. 2001 Pat 181, this Court has held that in a probate proceeding, on the death of the executor who had filed the probate case, his son who is also a legatee would be substituted in his place in probate proceeding.

20. From the discussions as above, I am of the view that P12/12 definition of legal representatives under Section 2(11) of „the Code‟ is very wide and will certainly include a person who seeks to represent the estate of a deceased person on the basis of Will said to have been executed by the deceased in his favour. As has been held by the High Court of Himachal Pradesh in case of Suraj Mani and Anr. V. Kishori Lal (supra), the estate will be sufficiently represented by such a person. The substitution would certainly not Page No.# 6/7

confer any special right nor would make such representative an heir to the property of the deceased."

8. I have heard the learned counsels at length.

9. The present petitioner has obviously claimed to be a legal heir of late Chandan hazarika on the basis of a Will executed in her favour. Here, at this stage, a brief visit to Section 213 of the Indian Succession Act would be fruitful. It read as under:

"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 1[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 an authenticated copy of the Will annexed. 2[(2) This section shall not apply in the case of Wills made by Muhammadans 3[or Indian Christians], or and shall only apply--

(i) in the case of Wills made by any Hindu, Buddhist, Sikh or Jaina where such Wills are of the classes specified in clauses (a) and (b) of section 57; and

(ii) in the case of Wills made by any Parsi dying, after the commencement of the Indian Succession (Amendment) Act, 1962 (16 of 1962), where such Wills are made within the local limits of the 4[ordinary original civil jurisdiction] of the High Courts at Calcutta, Madras and Bombay, and where such Wills are made outside those limits, in so far as they relate to immoveable property situated within those limits.]".

10. So, the law is very clear. The right of the petitioner as a legatee cannot be established in any court of law until a court of competent jurisdiction grants a probate in her favour. In this case, it is an admitted fact that the probate proceeding is still going and no probate has yet been granted in favour of the petitioner.

11. But the 'phrase' legal representative as defined in Section 2(11) of the Code of Civil Procedure means a person who in law represents the estate of a deceased person and includes any person who intermeddles with the estate of the deceased. The said definition is inclusive in character and its scope is wife.

12. So, there is no impediment in substituting the petitioner in place of the deceased appellant in the memo of appeal. However, in view of the law laid down in the Section 213 of the Indian Succession Act, the outcome of the appeal will be subject to the outcome of the connected probate proceeding. To make things clear, it can be said that the competent probate court does not grant a probate in favour of the petitioner, she will never be treated as a legal heir of the deceased Chandan Hazarika in respect of the property involved in this litigation.

13. With the aforesaid premised reasons, the prayer of the petitioner is allowed. The petitioner Smti.

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Madhuri Kalita, daughter of late Harendra Nath Kalita shall be substituted in place of the deceased appellant Chandan Hazarika.

14. The IA(C) stands disposed of accordingly.

JUDGE

Comparing Assistant