The Calcutta High Court clarifies that an executor or legatee under an unprobated Will has locus standi to object to execution of a decree under Order XXI Rules 97 to 101 CPC, even before actual dispossession, especially in the context of Dayabhaga succession; the decision reaffirms and explains the scheme of the CPC and Succession Act, serving as binding authority on subordinate courts within its jurisdiction.
Summary
| Category | Data |
|---|---|
| Case Name | FMAT/216/2025 of GANGA BOHRA Vs SOURAV ROY |
| CNR | WBCHCA0259022025 |
| Date of Registration | 11-06-2025 |
| Decision Date | 27-10-2025 |
| Disposal Nature | ALLOWED |
| Judgment Author | HON’BLE JUSTICE SABYASACHI BHATTACHARYYA |
| Concurring or Dissenting Judges | HON’BLE JUSTICE UDAY KUMAR (concurring) |
| Court | Calcutta High Court |
| Bench | Division Bench – Sabyasachi Bhattacharyya, Uday Kumar |
| Precedent Value | Binding on subordinate courts within Calcutta High Court’s jurisdiction |
| Overrules / Affirms | Affirms and clarifies existing Supreme Court precedents (e.g., Mohan Krishan Abrol) |
| Type of Law | Civil Procedure, Succession Law |
| Questions of Law |
|
| Ratio Decidendi | The court held that objections by an executor or legatee under Order XXI Rules 97 to 101 CPC are maintainable even before actual dispossession. The executor under an unprobated Will possesses locus standi in their capacity as legal representative to protect the estate, subject to the specific scheme of the Dayabhaga school under which succession by “survivorship” does not arise. The bar under Section 213 of the Succession Act only operates with respect to establishing rights “as executor or legatee” and not as legal representative for protection of estate. The property of the deceased vests in the executor upon death for all purposes except distribution under the Will, pending probate. The director of a judgment debtor-company is not, merely by virtue of directorship, bound as a party under the decree against the company. The matter was remanded for adjudication on merits. |
| Judgments Relied Upon |
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| Logic / Jurisprudence / Authorities Relied Upon by the Court | The court relied on the structure and interrelation of Order XXI Rules 97–103 CPC and Sections 211, 213, 227 of the Succession Act. It distinguished “survivorship” (Mitakshara) from “succession” (Dayabhaga) and held that the executor’s right to represent the estate vests upon death of the testator under Dayabhaga. The Supreme Court in Mohan Krishan Abrol was cited to support that property vests in the executor by virtue of the Will, not probate. The rights are limited pre-probate to protection of the estate, not its distribution. |
| Facts as Summarised by the Court | The dispute concerns a Salt Lake property originally leased to Late Sunil Kumar Roy. His widow sued for declaration of rights and possession; after initial dismissal, the appellate court decreed in her favour. Execution followed. Ganga Bohra, claiming as executor and legatee under an unprobated Will of the deceased testator, objected to execution under Order XXI Rules 97–101 CPC before being dispossessed. The court below dismissed her application as not maintainable, citing lack of probate and anticipation of dispossession. The High Court reversed. |
Practical Impact
| Category | Impact |
|---|---|
| Binding On | All subordinate courts within Calcutta High Court’s jurisdiction |
| Persuasive For | Other High Courts and may be cited before the Supreme Court |
| Follows | Commissioner, Jalandhar Division and Others v. Mohan Krishan Abrol and another, (2004) 7 SCC 505; Babulal v. Raj Kumar, (1996) 3 SCC 154 |
What’s New / What Lawyers Should Note
- Clarifies that an executor or legatee under an unprobated Will, especially governed by Dayabhaga, can maintain objections in execution proceedings under Order XXI Rules 97–101 CPC, including before actual dispossession.
- Confirms that probate is not a prerequisite to locus standi for the limited purpose of protecting the estate under Section 211 of the Succession Act.
- Distinguishes between “survivorship” (Mitakshara) and “succession” (Dayabhaga) and restricts the Section 211(2) bar to Mitakshara ancestral coparcenary property.
- Holds that directors of judgment debtor-companies are not per se bound by decrees against the company for purposes of claiming independent rights as third parties.
- Reiterates that all questions of right, title, and interest must be decided by the executing court if objections are raised by a third party—court cannot summarily dismiss on maintainability.
Summary of Legal Reasoning
- The court evaluated the timeline and found execution and process for possession were underway before Ganga Bohra’s objections, making her application under Order XXI Rules 97–101 CPC maintainable.
- It held that “anticipation of dispossession” is not a bar to raising objections by a third party in execution—such objections must be adjudicated on all questions of title or interest, not summarily dismissed for lack of dispossession.
- Relying on Supreme Court precedent (Mohan Krishan Abrol), the court clarified that property of a testator vests in the executor by virtue of the will itself upon death, not suppressed until probate, for purposes of legal representation and protection.
- Explained the scope of Section 211(2) of the Succession Act, restricting “survivorship” (which bars vesting in executor) to Mitakshara coparcenary property and not to Dayabhaga law of succession where the testator’s property devolves entirely by succession upon death.
- Affirmed that directors are not bound by decrees passed against companies merely by reason of their office unless their own rights spring through the company.
- Concluded that the lower court erred in law on maintainability; remanded the matter for decision on merits.
Arguments by the Parties
Petitioner (Appellant – Ganga Bohra):
- Objection under Order XXI Rule 99 CPC should not be disposed of at the threshold on maintainability or locus standi grounds; all issues should be framed and adjudicated on merits (citing Baljit Singh v. Balkar Singh).
- Applications under Order XXI Rules 97–101 can be maintained even before actual dispossession; waiting for dispossession would defeat purpose (citing Babulal v. Raj Kumar; Mohan Krishan Abrol).
- As executor and legatee under a Will, locus standi to claim right, title, and interest exists even if probate not yet granted; Sections 211 and 213 of Succession Act invest legal representation upon death.
- The claim is independent of judgment debtor-companies and arises through the Will, not through her being a director.
Respondent (Sourav Roy):
- As per Section 213 of the Succession Act, no right as executor/legatee can be established unless probate is granted.
- Under Section 211(2), for Hindus, property would pass by survivorship to the widow and son, not the executor.
- The Will in question is alleged to be forged (already decreed by appellate court).
- The director of judgment debtor-company is bound by the decree and undertaking to vacate.
Factual Background
A property in Salt Lake, Kolkata was leased to Late Sunil Kumar Roy, who also leased it to two companies. Upon Roy’s death, his widow sued for declaration and possession, with the present respondent (son) as pro-forma defendant. The suit was initially dismissed, but on appeal, the widow succeeded; execution was commenced. Meanwhile, Ganga Bohra—allegedly executor and sole legatee under a 1994 Will—had a pending probate suit and filed objections to the execution under Order XXI Rules 97–101 CPC before being dispossessed. Her application was dismissed on maintainability by the executing court; the High Court allowed her appeal.
Statutory Analysis
Order XXI Rules 97–101 CPC: Provides a comprehensive code for third party objections in execution; courts must adjudicate all questions of right, title, and interest if objections are raised (whether prior to or after dispossession).
Section 211, Indian Succession Act: Property of deceased vests in executor as legal representative for all purposes immediately upon death; vesting not contingent upon probate except where survivorship (Mitakshara law) applies.
Section 213, Indian Succession Act: Bars establishment of right as executor or legatee in court absent probate, but not exercise of rights merely as legal representative for protecting estate.
Section 227, Indian Succession Act: Probate when granted is effective retrospectively from date of death, validating all prior acts of executor in such capacity.
Rule 208, Civil Rules of Calcutta High Court: Provides for police assistance in execution upon resistance/obstruction.
Dissenting / Concurring Opinion Summary
HON’BLE JUSTICE UDAY KUMAR concurred with the judgment and reasoning of HON’BLE JUSTICE SABYASACHI BHATTACHARYYA; no separate or dissenting opinion was given.
Procedural Innovations
- The judgment clarified that objections raised by third parties under Order XXI Rules 97–101 CPC must always be adjudicated on all questions raised, with proper opportunity to adduce evidence, and cannot be dismissed solely on threshold maintainability grounds either for want of probate or because dispossession has not yet occurred.
- Set precedent for remanding such matters for merit-based adjudication where a trial court has erroneously dismissed them in limine.
Alert Indicators
- ✔ Precedent Followed – The court clarifies and follows Supreme Court precedent (notably Mohan Krishan Abrol) and affirms the existing position of law, but elucidates it for the context of Dayabhaga succession.