Case Note & Summary
The appeal arose from a judgment of the Calcutta High Court which directed that a suit concerning property ownership could not proceed until the will of the deceased Avarani Bose was probated. Avarani Bose had executed a sale deed in favor of the appellant, Binapani Kar Chowdhury, but later filed a suit claiming ownership against her. After Avarani Bose's death, the first respondent sought to be substituted as her legal representative based on a will. The trial court ruled that the suit could not proceed without probate, a decision upheld by the High Court. The appellant contended that the first respondent was delaying probate to prolong the suit and avoid paying rent. The Supreme Court noted that while Section 213 of the Indian Succession Act bars establishing rights under a will without probate, it does not prevent the suit from being instituted. The court emphasized the need for expediency given the long pendency of the case and the age of the appellant. It directed the trial court to proceed with the suit while clarifying that any decree would be provisional until probate was obtained. The court refrained from expressing any opinion on the merits of the case.
Headnote
A) Succession Law - Probate Requirement - Executor's Rights - Indian Succession Act, 1925, Section 213 - The court held that no right as executor or legatee can be established without probate, but the suit can proceed with the executor or legatee substituted as legal representative. The trial court was directed to hear arguments and deliver judgment, with the decree being provisional until probate is obtained (Paras 4-8).
Issue of Consideration
Whether the trial court can proceed with the suit without the probate of the will executed by Avarani Bose.
Final Decision
The Supreme Court directed the trial court to proceed with the hearing and deliver judgment in the suit, clarifying that any decree would be provisional until probate was obtained.
Law Points
- Probate requirement
- Executor's rights
- Legal representation
- Section 213 Indian Succession Act
- 1925
- Order 22 Rule 3 CPC
