In a subsequent decision in FGP Limited Vs. Saleh Hooseini Doctor, MANU/SC/1629/2009 : (2009) 10 SCC 223 the distinction between Section 211 and Section 213 of the Succession Act was noted and it was held that the expression "legal representative" will have the same meaning as given in Section2(11) of the Code of Civil Procedure, 1908. The Supreme Court held as follows:
In this connection, we must see the distinction between Sections 211 and 213 of the Succession Act. Under Section 211 of the said Act, 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. Here the legal representatives will have the same meaning as has been given in Section 2(11) of the Code of Civil Procedure....Therefore, it is Section 211 and not Section 213 that deals with the vesting of property. This vesting does not take place as a result of probate. On the executor's accepting his office, the property vests on him and the executor derives his title from the will and becomes the representative of the deceased even without obtaining probate. The grant of probate does not give title to the executor. It just makes his title certain.Under Section 213, the grant of probate is not a condition precedent to the filing of a suit in order to claim a right as an executor under the will. This vesting of right is enough for the executor or administrator to represent the estate in a legal proceeding.
IN THE HIGH COURT OF BOMBAY
Decided On: 25.09.2013
Appellants: Manoj Karam
Vs.
Respondent: Ram Tuljiram Shahani & Ors.
Vs.
Respondent: Ram Tuljiram Shahani & Ors.
Hon'ble Judges/Coram:D.Y. Chandrachud and M.S. Sonak , JJ.
Citation;2014(2) ALLMR 281Bom
1. The appeal arises from a judgment of a Learned Single Judge dated 21 June 2013, which has been rendered in a Chamber Summons which was taken out by the Appellant for being brought on the record in execution proceedings arising out of a consent decree, in his capacity as an executor of a will alleged to have been executed by the original Third Defendant. The Third Defendant died and the Appellant has instituted proceedings for probate which are pending. The Learned Single Judge dismissed the Chamber Summons on the ground that unless the rights of the Appellant as sole executor are 'finalised' or decided by the Court upon the grant of probate, it was not open to the Appellant to seek to be joined in the execution proceedings. In a partition suit of 1989, Consent Terms were arrived at on 7 February 2008. The suit was decreed in terms of the Consent Terms. Clause (1) of the Consent Terms related to a flat in a building called Shyam Nivas. The Consent Terms envisaged that the flat would be sold and the original Plaintiff and the seven defendants would each obtain a one eighth share in the sale proceeds, after deducting the expenses of the sale. The Third Defendant is alleged to have executed a testamentary disposition on 10 January 2006. The Third Defendant died on 19 December 2009. The Appellant claims to be the sole executor under the will of the Third Defendant. On 7 January 2011, an execution proceeding was filed1 for seeking the execution of the Consent Terms in relation to the flat at Shyam Nivas. The Appellant filed a Chamber Summons on 11 July 2012 seeking to be impleaded as a party to the execution proceedings on the ground that he has been named as the sole executor in the will of the Third Defendant and was hence, entitled to represent the estate. The Chamber Summons has been dismissed by the Learned Single Judge by the impugned order.
2. Counsel appearing on behalf of the Appellant submits that (i) There is a distinction between the provisions of Section 211 and Section 213 of the Indian Succession Act, 1925. Section 213 provides that no right as executor or legatee can be established unless a Court of competent jurisdiction has granted probate of the will under which the right is claimed. Section 213, however, does not preclude the executor from setting up a claim or asserting an entitlement to represent the estate of the deceased; (ii) The Appellant as sole executor falls within the meaning of the expression "legal representative" in Section 2(11) of the Code of Civil Procedure, 1908 and since any proceedings could have been taken or an application could have been made against the Third Defendant, such a proceeding or application can be made by or against any person claiming under him by virtue of Section 146 ; (iii) The Learned Single Judge has ignored the decisions which were cited before the Court; and (iv) The judgment of the Learned Single Judge proceeded on the basis that the Appellant should not be allowed to obstruct the execution proceedings. The basis is erroneous, but in any event, it is clarified that the Appellant has no intent to delay the sale since under the consent terms each party is entitled to a one eighth share and directions have already been issued for a deposit of the deceased's one eighth share in Court.
3. On the other hand, it has been urged on behalf of the contesting Respondents by Counsel that (i) The apprehension of the contesting Respondents was that the Appellant would seek to obstruct the execution of the Consent Terms; (ii) Though the Appellant has filed proceedings for the grant of probate, a caveat has been filed, following which the proceedings have been converted into a contested suit; (iii) Hence, unless the will is duly probated, the Appellant would have no locus to be brought on the record in the execution proceedings.
4. The rival submissions fall for consideration.
5. Section 211(1) of the Indian Succession Act, 1925 provides as follows:
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.
Sub-section (1) of Section 213 makes the following provisions:
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 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.
6. Under sub-section (1) of Section 211, an executor or administrator of a deceased person is treated as his legal representative for all purposes. Moreover, all the property of the deceased vests in him as such, that is to say, in his capacity as executor or administrator. Sub-section (1) of Section213 imposes bar upon the establishment in any court of justice of a right as executor or legatee unless the court of competent jurisdiction in India has granted probate of the Will. Section 211 and Section 213 operate in distinct fields. Section 211 recognizes the capacity of an executor or administrator as a legal representative of the deceased for all purposes so that the property of the deceased vests in him as such. However, what Section 213(1) does is to preclude a right as an executor or legatee being established unless probate has been obtained of the will in a court of competent jurisdiction. Section213 does not prohibit an executor from making a claim for, it does not postulate that an executor would be barred even from making a claim until probate is granted. Nor for that matter does Section 213 prohibit an executor from claiming to represent the estate of the deceased in proceedings to which the deceased was a party.
7. The matter has to be looked at from another perspective as well. Section 2(11) of the Code of Civil Procedure, 1908 defines the expression "legal representative" as follows:
(11) "legal representative" 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.
Under Section 2(11), a legal representative is a person who in law, represents the estate of a deceased person and includes a person who intermeddles in the estate of the deceased. The executor under a will fulfills that description.
Section 146 provides as follows:
146. Proceedings by or against representatives. - Save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him.
Consequently, where a proceeding may be taken or an application may be made by or against any person, then such a proceeding may be taken or an application may be made by or against any person claiming under him.
8. In the leading judgment of the Supreme Court in Mrs. Hem Nolini Judah Vs. Mrs. Isolyne Sarojbashini Bose, MANU/SC/0399/1962 : AIR 1962 SC 1471 the provisions of Section 213 of the Succession Act were interpreted in the following observations:
The words of Section 213 are not restricted only to those cases where the claim is made by a person directly claiming as a 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 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 letter of administration.
In Binapani Kar Chowdhury vs. Sri Satyabrata Basu, MANU/SC/2832/2006 : (2006) 10 SCC 442 a Bench of two Learned Judges of the Supreme Court followed the earlier decision while holding that Section 213 would not come in the way of a suit or action being instituted or presented by the executor or legatee claiming under the will. Moreover, where a testator had filed a suit and died during the pendency of the proceedings, his executor or legatee could be brought on record as legal representative under Order 22 Rule 3 of the Code of Civil Procedure, 1908:
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.
In a subsequent decision in FGP Limited Vs. Saleh Hooseini Doctor, MANU/SC/1629/2009 : (2009) 10 SCC 223 the distinction between Section 211 and Section 213 of the Succession Act was noted and it was held that the expression "legal representative" will have the same meaning as given in Section2(11) of the Code of Civil Procedure, 1908. The Supreme Court held as follows:
In this connection, we must see the distinction between Sections 211 and 213 of the Succession Act. Under Section 211 of the said Act, 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. Here the legal representatives will have the same meaning as has been given in Section 2(11) of the Code of Civil Procedure....Therefore, it is Section 211 and not Section 213 that deals with the vesting of property. This vesting does not take place as a result of probate. On the executor's accepting his office, the property vests on him and the executor derives his title from the will and becomes the representative of the deceased even without obtaining probate. The grant of probate does not give title to the executor. It just makes his title certain.Under Section 213, the grant of probate is not a condition precedent to the filing of a suit in order to claim a right as an executor under the will. This vesting of right is enough for the executor or administrator to represent the estate in a legal proceeding.
8A. The same principle has been enunciated in a judgment of a Division Bench of this Court in Ramniklal Amnritlal Shah vs. Bhupendra Impex Pvt. Ltd.MANU/MH/0075/2001 : AIR 2001 Bom 224 While adverting to the judgment of the Supreme Court in Hem Nolini (supra), the Division Bench held as follows:
In our view, the Supreme Court in this judgment has distinguished laying claim as an executor or a legatee from establishing the right as a legatee or an executor. A reading of the judgment does not even remotely suggest that a suit brought in the capacity of legatee or executor would fall unless the probate certificate is filed with it. Nor does it suggest, as Mr. Doctor does, that where a person is brought on record as an executor to represent the estate of a deceased plaintiff, unless he produces a probate certificate, the suit must be held to have abated. We are, therefore, of the view that Section 213 is merely a bar to a person "establishing" his right as an executor or legatee in an action. This does not suggest that the said person cannot claim the capacity of executor or legatee so long as he is able to produce the probate certificate before the actual decree is passed. In other words, the bar is really one against the passing of a decree without a probate certificate and not the entertainment of the suit itself.
A similar view has been taken in a judgment of a Learned Single Judge of the Calcutta High Court in Anjali Mullick vs. Mrityunjoy DeyMANU/WB/0054/2004 : (2004) 2 CLT 382.
9. In view of this clear position in law, we are of the view that the Learned Single Judge was in error in rejecting the Chamber Summons of the Appellant. The Learned Single Judge has furnished the following reasons in para 4 and 7 for rejecting the Chamber Summons:
The estate of the deceased, even if required to be represented by the Executor in view of a Will in question, which is definitely subject to the final decision of the Suit/probate proceedings, so filed. Therefore, at this stage, without expressing anything on the merits of the challenge so raised, considering the facts and circumstances of the case, the consent terms which are admittedly even signed by the deceased and as the Execution Application is filed. The Chamber Summons to intervene in the said proceedings, in my view, is also not essential, as submitted, as of right to represent the estate of the deceased in view of the provisions of Indian Succession Act, as well as the Judgments so cited.It is made clear that the rights of the Sole Executor, even if any, unless finalized and/or decided by the Court, in no way sufficient to obstruct and/or entitle him to join as a party, which is in the execution proceedings for the first time, which has foundation of the consent terms.
10. We are emphatically of the view that the Learned Single Judge was manifestly in error in holding that the Chamber Summons of the Appellant "was not essential" and that unless the rights of the Appellant as sole executor are "finalized and/or decided by the Court", he would not be entitled to be joined in the execution proceedings as a legal representative of the deceased Third Defendant.
11. In order to allay the apprehension of the contesting Respondents, Counsel appearing on behalf of the Appellant has stated that the Appellant does not seek to obstruct the execution of the Consent Terms and has no objection to the property at Shyam Nivas being sold, particularly since the share of the deceased Third Defendant has been directed to be deposited, being a one eighth share in the consideration, in Court. The Court has been informed that the sale has been fixed on 10 October 2013 and it has been agreed that sale shall proceed.
12. For these reasons, we allow the appeal and set aside the impugned order of the Learned Single Judge dated 21 June 2013. In consequence, the Chamber Summons is made absolute in terms of prayer clause (a) with a consequential direction that the amendment shall be carried out within a period of two weeks. The appeal is accordingly disposed of. There shall be no order as to costs. In view of the disposal of the appeal, Notice of Motion (L) No. 1267 of 2013 in the appeal, will not survive and is accordingly disposed of.
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