2006 (5) TMI 541 - SC - Indian Laws

Summary

Issues involved:
1. Interpretation of Section 213 of the Indian Succession Act regarding the requirement of probate for establishing the right of an executor or legatee under a Will.
2. Determination of whether a suit can be decided in the absence of probate when initiated by the testator himself and subsequently continued by the executor/legatee.
3. Consideration of delays in obtaining probate and its impact on the proceedings and rights of the parties involved.

Issue 1: The judgment addresses the interpretation of Section 213 of the Indian Succession Act, which mandates that the right of an executor or legatee under a Will can only be established upon obtaining probate or letters of administration. The court emphasizes that this section applies to cases involving Wills made by Hindus residing in Calcutta. It is highlighted that the suit cannot be decided unless the executor of the Will presents the probate, as per the legal provisions outlined in Section 213. The judgment cites a previous case to support the understanding that no right as an executor or legatee can be established without probate, irrespective of who is attempting to establish the right.

Issue 2: The judgment delves into the question of whether a decree can be passed in the absence of probate when a suit is initiated by the testator and later continued by the executor or legatee. Two conflicting views are presented in previous cases, with one perspective suggesting that probate is necessary before a judgment can be delivered in such cases. The other viewpoint argues that Section 213 does not apply when the suit was not filed to establish the rights of an executor or legatee under a Will. However, the court refrains from exploring this issue further due to the absence of representation from the respondent and opts to resolve the appeal based on the specific circumstances of the case.

Issue 3: The judgment also considers the delays in obtaining probate and their impact on the legal proceedings and rights of the parties involved. It notes the prolonged pendency of the probate proceedings in this case, causing significant delays in the resolution of the suit. The court observes that the first respondent's failure to secure probate and lack of participation in the appeal raise suspicions of deliberate prolongation to maintain possession of the property. In light of these circumstances, the court directs the trial court to proceed with hearing arguments and delivering judgment in the suit, specifying that any decree will only take effect upon the first respondent obtaining and presenting the probate of the Will. This provisional approach aims to ensure fairness and timely resolution while refraining from expressing any opinion on the case's merits.