P.K. Ray, J.
1. The defendant of Money Suit No. 9 of 1992, being the petitioner in this application under section 115 of the Code Civil Procedure has assailed the order dated 12.8.96 passed by the learned Munsif, 1st Court, Bankura in connection with the said money suit, whereby and whereunder the application under section 151 of the Code of Civil Procedure filed by the defendant praying for stay of the instant proceeding till the will is probated in the appropriate forum, was rejected only on the ground that two sons of the plaintiff though claimed to be the legal representatives to continue the suit on the basis of the will in view of their status as executors, but they had also the right as legal heirs on the property of the suit on pro rata basis.
2. The petitioner herein has submitted that since all the legal heirs are not parties to the proceeding, and since only the executors under the will have been impleaded as parties to continue the suit, the left out legal heirs may cause problem until and unless the will is probated confirming the right of the executors, and in that view of the matter, the suit was required to be stayed till the concerned will was probated in the appropriate proceedings.
3. Learned Advocate for the opposite parties herein, that is the substituted heirs on the basis of such will as plaintiffs, has contended, inter alia, that in view of the terms of the Indian Succession Act, they are entitled to continue the suit irrespective of grant of probate in appropriate proceedings relating to the will on the strength and basis of which they acquired the right to continue the suit as legal representatives and there was no necessity of stay of the proceedings by imposing any rider as sought for.
4. Considering the rival contentions of parties, I feel that interpretation of sections of the Indian Succession Act, will only give a right answer on the issue in question. Accordingly, it is decided in that way. Under section 211(1) of the Indian Succession Act, 1925, it is provided that 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. Section 211 further provides under sub-section (2) that in absence of such will, where the property would have vested on the basis of succession, would not control the same in the event of existence of a will. The provision of section 211 is quoted in extenso for appreciation of the matter:
"211. Character an 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.
(2) When the deceased was a Hindu, Mahammadan, Buddhist, Sikh, Jaina or Parsi or an exempted person, nothing herein contained shall vest in an executor or administrator any property of the deceased person which would otherwise have passed by survivorship to some other person."
Now, who would be the legal representative?
Section 2 sub-section (11) of the Code of Civil Procedure defines the 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 representative character of the person on whom the estate devolves on the death of the party so suing or sued."
5. On a simple reading of section 2(11) of the Code of Civil Procedure, it is clear that even a person who intermeddles with the estate of deceased, has been termed as a legal representative and it is further provided that the person upon whom the estate devolves on the death of a party, also is to be termed as legal representative. Hence reading section 2, sub-section (11) of the Code coupled with section 211 of the Indian Succession Act, 1925, it is clear that the executor or the administrator is the legal representative in respect of the property of a deceased and the property vests to such person. The words "for all purposes" have special significance as appearing in section 211 sub-section (1) of the Indian Succession Act, 1925. For all purposes, it is inclusive even continuation of any proceeding where jural relationship of the parties and/or the claim of the parties is decided save and except the cases where the life of the its faces the death absolutely being of the personal right who brought an action under the law. Hence in view of the legal position on interpretation of section 211 of the Indian Succession Act, it is clear that executors under a will are the legal representatives for all purposes and since the property vests to them immediately on the demise of the testator and/or the testatrix as the case may be, under the Code of Civil Procedure they are also to be deemed as legal representatives to continue the suit after demise of the party in the proceeding, that is the testator or the testatrix under a will, in that view of the matter, presence of the present opposite parties as executors of the said will is supported by the section itself. Now the question is whether till the Will is probated, the present suit will remain stayed or not. To have answer of this question, section 227 of the Indian Succession Act, 1925, is a relevant factor to be considered. Section 227 of the Act reads as follows:
"227. Effect of probate.--Probate of a will when granted establishes the will from the death of the testator, and renders valid all intermediate acts of the executor as such."
6. Under section 227 of the Indian Succession Act, probate of a will when granted establishes the will from the death of the testator and renders valid all intermediate acts of the executor as such. Hence, under section 227 of the Act, validity of the intermediate acts as being performed by the executor on the basis and strength of section 211(1) of the Indian Succession Act, 1925, is finalised as an effect of probate. Hence, it is crystal clear that till the will is probated the intermediate act of the executor is not getting any validity irrespective of the power of such executor to deal with the property in question under the will as a legal representative. Hence, the action of the present executors under a will in this money suit to continue this proceeding as legal representatives is also saddled with the embargo under section 227 of the Indian Succession Act, that is the said action must be subject to validity of that action when the will is to be probated. Hence, the validity of the action when dependent upon on the probate of a will, the money suit cannot be decreed finally till the validity of such will is answered in a probate proceeding upon granting probate of the will. Probate is nothing but a formal declaration by a Court of law regarding legality, validity and effect of a will. It is a settled legal position that the property under a will cannot remain in a hanging position, but it always vests immediately upon the executors, but subject to the provision under section 227 of the Act, namely, validity of such action when the will is probated. In that view of the matter, the decision of the learned Court below impugned in this revisional application by not staying the further proceeding of money suit, in my view, is legal and valid, but the learned Court below did not consider the impact of section 227 of the Indian Succession Act, 1925, and there by no order was passed to that effect. Hence, the impugned order is modified to this extent that the suit will continue, but no final decree shall be passed till the will is probated and placed before the Court below.
The revisional application is accordingly disposed of. Xerox certified copy of the order, if applied for, be supplied expeditiously.
7. Application disposed of