Obtaining of probate is not a condition precedent for filing a suit, though the executor is not entitled to recover the decree without producing the probate.

Calcutta High Court  in Prabhat Nath Das v. Ramendra Kumar Saha, ILR 61 1081[division Bench]

 Division Bench of this Court held as follows:

‘……..The grant of a probate is not a condition precedent to the institution of the suit by the executor. See Chandra Kishore Roy v. Prasanna Kumari Dasi (1). There cannot be any doubt that the appellant had right to institute the present suit as executor before he obtained the probate. Whether as executor he would be entitled to recover the decree or to maintain the same passed by the trial Court without producing the probate is an entirely different matter. It is well established on authorities that he will be entitled to get a decree, if he produces the probate before the passing of the final decree…..’ [Calcutta High Court in Sibaji Mitra Vs. Smt. Prakashwati Chopra and anr. (2004)2CALLT555(HC) decided on Mar-11-2004 , clarified the matter .]


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