1. The father of the Plaintiff purchased a holding inexecution of a decree and had notices under sec. 167 of the Bengal Tenancy Actissued on the Defendants who are under-raiyats. On the death of his father thePlaintiff brought this suit for ejectment. The plea of the Defendants was,amongst others, that the deceased father of the Plaintiff had left a Will underwhich the Plaintiff was only a part-owner of the property in suit and could notas such eject them. The Plaintiff in his deposition admits that he has heard ofthe execution of a will by his father. The Defendant produced the will, and thePlaintiff objected to its being proved. The Court of first instance allowed thewill to be proved and dismissed the suit of the Plaintiff as incompetent. Ithas been contended before us that the Courts below are wrong in allowing theWill to be proved and should have proceeded to try the suit, notwithstandingthe Will which could be proved only in a proper proceeding under the ProbateAct.

2. It is contended that so long as probate is not taken, theestate of the testator must be represented by the heir-at-law. In the case ofProsunno Chandra Bhattacharya v. Krista Chaitanya Pal I. L. R. 4 Cal. 342 (1878),Mr. Justice Markby said :--"I think that until some other claimant comesforward, the party who takes possession of the estate of a deceased Hindu must,in the present state of the law, be treated for some purposes as hisrepresentative and a judgment obtained against such a representative is not amere nullity." The reason given was that otherwise the remedy of thecreditor against the estate might be barred by an intentional delay in takingout probate. In the case of Sarbamungola v. Mahendro Nath I. L. R. 4 Cal. 509(1879), Mr. Justice White allowed a Will to be proved ; although no probate hadbeen granted of the same, the heiress was allowed to prove it for the purposeof construing it and showing that it was void. This latter case is authority forupholding the proof of the execution of the Will ; that however is notsufficient for passing title under the Will. Sec. 187 of the Succession Actapplies to the Wills of Hindus and no title under the Will can be establishedin any Court of Justice unless a probate or letters of administration with theWill annexed has been granted by a competent Court. The Will thereforeuncovered as it is by a Probate or Letters of Administration cannot prove thatanybody named therein has title to the estate of the testator. The plea ofnonjoinder must therefore fail. The question however still remains to bedecided--does the Plaintiff represent his deceased father so as to be competentto maintain the suit The case of Prosunno Chandra Bhattacharya v. KristaChaitanya Pal I. L. R. 4 Cal. 342 (1878) is authority for holding that hemight, if he is in possession of his fathers estate represent him for thepurpose of being sued by a creditor. In the case of Choony Lal v. Osmond BibeeI. L. R. 30 Cal. 1044 [LQ/CalHC/1903/100] (1903) the residuary legatee as well as the heir abintestato were substituted as the representatives of a deceasedjudgment-debtor, and it was held that the representation was complete. Mr.Justice Markby, in the case of Prosunno Chandra I. L. R. 4 Cal. 342 (1878),says "the executor does not represent the deceased by virtue of the Willuntil he has obtained probate. Who then represents the deceased who has left aWill until probate has been obtained Surely some one must do so, or the lawwould not have provided that the statute of limitation should run between thedeath and the grant of probate and it undoubtedly does." If this be thereason why the party in possession should represent the deceased until the Willis proved so far as a claimant against the estate is concerned, there is noreason why the heir in possession should not represent the estate for thebenefit of the estate against persons liable to the estate. Just as the decreeagainst the party in possession may be available to the creditor for workingout his remedy against the executor when he obtains probate, the decreeobtained by the party so in possession may enure to the benefit of theclaimants under the Will when they can rely on the same as their deed of title.The heir-at-law may claim adversely to the Will, he may impeach the validity ofthe Will notwithstanding that execution is proved: he may have various defencesavailable to him against any claimant under the Will.

3. In any case, if he can prove that he has come intopossession of the general estate of his father, he can as the legal heirmaintain a suit for the benefit of the estate, so long as any other claimantdoes not establish his right to the same under the Will. The learned Munsif inthis case was satisfied with the mere proof of the execution of the Will. TheWill although in Court was not even put to the Plaintiff when he was examined.We think that the judgments of the Courts below should be set aside, and thecase sent back to the first Court for decision on the merits after allowing theparties opportunity for adducing such evidence as may be relevant. ThePlaintiff is entitled to the costs of this and the lower Appellate Court. Thecosts in the first Court will abide the result.

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Basunta Kumar Chuckerbuttyvs. Gopal Chunder Das (11.06.1914- CALHC)