The Calcutta High Court holds that an executor under an unprobated will, even before actual dispossession, has locus standi to object to execution proceedings under Order XXI Rules 97-101 CPC. The Court distinguishes the powers under Sections 211 and 213 of the Indian Succession Act, clarifies the operation of survivorship under different schools of Hindu law, and upholds a broader remedial scope for third-party objectors in execution. This judgment is binding within West Bengal and serves as persuasive authority elsewhere. Prior restrictive interpretations are expressly overruled.
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 | JUSTICE SABYASACHI BHATTACHARYYA |
| Concurring or Dissenting Judges | JUSTICE UDAY KUMAR (Concurring) |
| Court | Calcutta High Court |
| Bench | The Hon’ble Mr. Justice Sabyasachi Bhattacharyya and The Hon’ble Mr. Justice Uday Kumar |
| Precedent Value | Binding within Calcutta High Court jurisdiction; persuasive elsewhere |
| Overrules / Affirms | Overrules contrary interpretations on maintainability and locus standi of executors under unprobated wills in execution proceedings |
| Type of Law | Civil Procedure, Succession Law |
| Questions of Law |
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| Ratio Decidendi |
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| Judgments Relied Upon |
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| Logic / Jurisprudence / Authorities Relied Upon by the Court |
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| Facts as Summarised by the Court | Dispute concerns Salt Lake property originally leased to Sunil Kumar Roy, who allegedly executed a will in favour of Smt. Ganga Bohra. Following successive litigation, a decree for possession was obtained. Ganga Bohra, as alleged executor/legatee under the will (probate pending), filed an objection under Order XXI Rules 97–101 CPC before dispossession, which was dismissed for want of maintainability. She appealed, asserting her independent right. |
Practical Impact
| Category | Impact |
|---|---|
| Binding On | All subordinate courts within Calcutta High Court’s jurisdiction |
| Persuasive For | Other High Courts, Supreme Court |
| Overrules | Prior interpretations requiring actual dispossession before filing under Order XXI Rule 97; restrictive readings of executor’s locus pending probate under Section 213 Succession Act |
| Follows |
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What’s New / What Lawyers Should Note
- Maintains that an executor under an unprobated will can object to execution proceedings under Order XXI Rules 97–101 CPC, even before actual dispossession.
- Clarifies the distinction between “succession” and “survivorship” under Dayabhaga and Mitakshara schools for purposes of Section 211(2) Succession Act.
- Holds that property vests in the executor as legal representative from the moment of death of the testator, not from probate.
- Establishes that Section 213 bars only acts as executor/legatee, not as legal representative protecting the estate.
- Confirms that independent third-party claims cannot be defeated solely on the basis of prior directorship in judgment debtor companies or undertakings given by such companies.
- Mandates the executing court to adjudicate on merits any Order XXI Rules 97–101 objection based on independent right, title, or interest.
Summary of Legal Reasoning
- The Court first identified the statutory framework of Order XXI Rules 97–103 CPC as a “mini Code” requiring that all questions, including those relating to right, title, or interest of third-party objectors, must be conclusively determined by the executing court instead of relegating them to separate suits.
- It interpreted “actual dispossession” not as a prerequisite for invoking Order XXI Rule 97; resistance or obstruction suffices, and objections may be raised before dispossession.
- The Court undertook a crucial statutory analysis of Sections 211 and 213 of the Indian Succession Act:
- Section 211(1) vests property in an executor at death (for all purposes as legal representative).
- Section 213 prohibits the establishment of rights specifically “as executor or legatee” in court absent probate, but does not bar protective acts as legal representative.
- Section 227 gives retrospective effect to actions taken by executor upon later grant of probate.
- It carefully analyzed and distinguished the meaning of “survivorship” (which applies under the Mitakshara but not the Dayabhaga school) and held that the exception in Section 211(2) does not restrict executor’s vesting rights under Dayabhaga law.
- The Court applied Commissioner, Jalandhar Division & Ors. v. Mohan Krishan Abrol & Anr., supporting the view that property vests from death, not from probate.
- Addressed that a director’s past association with the judgment debtor company does not preclude assertion of an independent claim as executor/legatee.
- The impugned order was found legally erroneous for dismissing the objection on maintainability; matter remanded for adjudication on merits.
Arguments by the Parties
Petitioner (Appellant):
- Application under Order XXI Rule 97 is maintainable prior to actual dispossession.
- Proper issues should have been framed and adjudicated on merits; summary dismissal on locus/maintainability is erroneous.
- The executor’s right to defend the estate vests upon testator’s death under Sections 211 and 213 of the Indian Succession Act, irrespective of grant of probate.
- Directorship of the judgment debtor companies is legally distinct from personal claim under the will; her individual claim is independent.
Respondent (Decree Holder):
- Section 213 requires probate before any right as executor/legatee can be asserted in court.
- Section 211(2) prevents vesting in executor if property passes by survivorship; as the testator was Hindu, property passed by survivorship to widow/son.
- Will is allegedly forged, as pleaded in earlier proceedings; impugned order did not make any finding on this but only recorded the submission.
Factual Background
A Salt Lake property originally leased from the State of West Bengal became the subject of dispute after Sunil Kumar Roy’s death. His widow, Mira Roy, sued contesting the nature of transactions between the deceased and two companies, seeking possession; Sunil Kumar Roy’s son (the respondent here) was proforma defendant. After the trial court’s dismissal and appellate reversal, a decree for possession was passed and execution begun. Smt. Ganga Bohra, purported executor and legatee under an unprobated will of the late Sunil Kumar Roy, filed an objection under Order XXI Rules 97–101 CPC, citing her independent interest. Her application was dismissed for want of maintainability, leading to this appeal.
Statutory Analysis
- Order XXI Rules 97–103 CPC: Provides a self-contained procedure for the executing court to determine all issues (including title) raised by third-party resistors/obstructors, requiring an adjudication on merits rather than summary dismissal.
- Sections 211, 213, 227 of the Indian Succession Act, 1925:
- Section 211(1): Property vests in executor as legal representative for all purposes immediately upon testator’s death.
- Section 211(2): Exception for property passing by survivorship; found inapplicable to Dayabhaga law.
- Section 213: Bars establishment of rights “as executor or legatee” in court prior to probate, but not exercise of legal representative functions.
- Section 227: Actions of executor validated retrospectively from the testator’s death upon grant of probate.
- Interpretation: Reading down “survivorship” exception to apply strictly to Mitakshara coparcenary property; upholds vesting in executor under Dayabhaga.
Dissenting / Concurring Opinion Summary
- Justice Uday Kumar concurred fully in the judgment and reasoning of Justice Sabyasachi Bhattacharyya.
- No dissenting opinion delivered.
Procedural Innovations
- The judgment reiterates that summary dismissal of Order XXI Rule 97–101 applications on maintainability grounds (absence of actual dispossession or pending probate) is impermissible, mandating full adjudication of such objections on merit.
- Directs expedited proceedings in light of protracted litigation.
Alert Indicators
- ✔ Precedent Followed – (on reading of Order XXI Rules 97–101, succession principles as per Supreme Court)
- 🚨 Breaking Precedent – (overrules prior contrary High Court interpretations requiring actual dispossession or disallowing locus to executor under unprobated will)