9911796707
TMI Blog2006 (5) TMI 541X X X X Extracts X X X X X X X X Extracts X X X X ..... e Will said to have been executed by Avarani Bose was not probated. 2. The facts relevant for the disposal of this appeal as stated by the appellant are as follows: 2.1) Late Avarani Bose was the owner of the suit property. The said Avarani Bose executed a registered sale deed in her favour on 23.12.1994 in respect of the suit property. The appellant resides in the first floor. 2.2) The said Avarani Rose filed Title Suit No. 10 of 1995 in the Court of Civil Judge, (Sr. Division), 8th Court, Alipore for declaration of title in respect of the suit property and for recovery of possession and injunction with respect to first floor of the suit property claiming that she had never sold the suit property to the appellant. The appellant wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to hear arguments and dispose of the suit, in view of the pendency of the probate proceeding, initiated by the first respondent in regard to the will of Avarani Bose. As the matter was pending for long, on 5.10.2001, the appellant filed an application under Section 151 of CPC before the trial court praying that the court may proceed with the hearing and decide the suit. The appellant inter alia contended that first respondent herein was deliberately prolonging the probate proceedings, so as to keep the suit against appellant pending as that enabled him to continue to reside in the ground floor of the suit property without paying rents/damages for occupation. The appellant also contended that she is old and is prevented from enjoying the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 substitutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. The suit is of the year 1995 and the original plaintiff died in 1997. The first Respondent came on record as Executor and Legatee of the original plaintiff in pursuance of an order dated 10.8.1998. The evidence had been concluded long ago. But till now the first respondent has not obtained the probate of the Will. The appellant-defendant is stated to be 74 years old. The said suit, wherein the validity of the sale deed executed in favour of the appellant by Avarani Bose 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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