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.
Citations : 2006-AIR(SC)-0-2263 : 2006-AIR(SCW)-0-3009 : 2006 (TLS) 42483
Binapani Kar Chowdhury Vs. Sri Satyabrata Basu
Court : SUPREME COURT OF INDIA
Referred Judgements:
Mrs. Hem Nolini Judah . Mrs. Isolyne Sarojbashini Bose, AIR 1962 SC 1471
Arijit Mullick v. Corporation of Calcutta, 1979 2 CalLJ 426
Gobinda Ballav Chakraborty v. Biswanath Mustafi, AIR 1980 Cal 143
Acts and Rules Cited : SUCCESSION ACT, 1925 S.213
BY
Vijay Pal Dalmia, Advocate
Supreme Court of India & Delhi High Court
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