Role of Unprobated Wills and Legal Representatives u/s 2(11) of the CPC

DATE: 13Th March 2025

Understanding the Legal Impact of Unprobated Wills on Substitution of Legal Representatives in Property Disputes

Legal Representation in Property Disputes: Unprobated Wills and Legal Representatives under Section 2(11) of the Code of Civil Procedure

In property disputes, when a plaintiff dies during the pendency of a suit, the issue arises as to who can represent the deceased’s estate. A common scenario involves the claim by a person who is named in an unprobated Will as a legal representative. The primary question in such cases is whether an unprobated Will can serve as the basis for substituting a legal representative in an ongoing suit. This issue is governed by Section 2(11) of the Code of Civil Procedure (CPC) and Order XXII Rule 3 of the CPC, alongside relevant provisions of the Indian Succession Act, 1925.

Legal Framework: Key Provisions

1. Section 2(11) of the Code of Civil Procedure
   Section 2(11) of the CPC defines a “legal representative” as:
   “a person who 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 a representative character, the person on whom the estate devolves on the death of the party so suing or sued.”This definition is broad and includes individuals who represent the estate of a deceased person, even if they are not the legal heirs. It covers executors, administrators, or any individual intermeddling with the estate of the deceased.
2. Order XXII Rule 3 of the CPC
   Order XXII Rule 3 provides the procedural steps for substituting the legal representative of a deceased plaintiff or defendant:
   • Sub-rule (1): When a party dies, and the right to sue survives, the Court, upon application, will substitute the legal representative of the deceased party in the suit.Sub-rule (2): If no application for substitution is made, the suit may abate, and the defendant may seek costs from the estate of the deceased.
   This provision emphasizes that the person who can represent the deceased’s estate can be substituted in place of the deceased party.

An order under Order 22, Rule 5 involves a summary enquiry as to who should be substituted in place of the deceased party in the pending proceeding and that such a decision does not operate as res judicata. It is still open to the petitioner in the present case, during the trial of the suit, to establish that the will is incompetent and confers no right, title and interest on the re?pondent and that, therefore, the respondent is not entitled to any relief in the suit

Unprobated Will and Its Role in Substitution

The central issue is whether a person named in an unprobated Will can be substituted as a legal representative. While Section 213 of the Indian Succession Act, 1925 states that a legatee or executor cannot establish their rights in court without probate, courts have recognized that an unprobated Will can be admitted as evidence in proceedings other than probate.

Section 213 of the Indian Succession Act, 1925 states:
“No right as executor or legatee can be established in any Court of Justice unless a Court of competent jurisdiction in India has granted probate of the Will under which the right is claimed, or has granted letters of administration with the Will.”

However, Section 213 applies primarily when a person is trying to establish rights as an executor or legatee. In the context of substitution in an ongoing suit, the Supreme Court and various High Courts have held that an unprobated Will can still be used for collateral purposes, such as proving the identity of the legal representative.

Section 211 and not Section 213 that deals with the vesting of property. This vesting does not take place as a result of probate. On the executor’s accepting his office, the property vests on him and executor derives his title from the  Will and becomes the representative of the deceased even without obtaining probate. The grant of probate does not give title to the executor. It just makes his title certain. Under Section 213, the grant of probate is not a condition precedent to the filing of a suit in order to claim a right as an executor under the will. (Fgp Ltd vs Saleh Hooseini Doctor & Anr, Supreme Court, 15 September, 2009, (2009) 10 SCC 223,)

Case Laws and Judicial Pronouncements

1. Custodian, Branches of Banco National Ultramarino v. Nalini Bai, AIR 1989 SC 1185
   In this case, the Supreme Court clarified the definition of a “legal representative” under Section 2(11) of the CPC. The Court held that the term includes anyone who intermeddles with the estate of the deceased, not necessarily the legal heir. This broad definition enables the substitution of a person named in an unprobated Will, as long as they are acting on behalf of the deceased’s estate.
2. Suraj Mani & Anr. v. Kishori Lal, (Himachal Pradesh High Court, AIR. 1976 HP 74)
   The Himachal Pradesh High Court held that a person seeking to represent the deceased’s estate based on an unprobated Will could be substituted as the legal representative in ongoing suits. The Court reaffirmed that the estate would be sufficiently represented by such a person, even though they may not be the legal heir.
3. Commissioner, Jalandhar Division & Ors. v. Mohan Krishan Abrol & Anr., (2004) 7 SCC 505
   The Supreme Court explained the role of probate and unprobated Wills. It clarified that while Section 213 of the Indian Succession Act prevents an executor or legatee from establishing rights without probate, an unprobated Will can be admitted for collateral purposes, such as in the case of substitution of a legal representative in a non-probate suit.The Court held:
   “A bare reading of Section 211 shows that the property vests in the executors by virtue of the Will and not by virtue of the probate. Will gives property to the executor; the grant of probate is only a method by which the law provides for establishing the Will. An unprobated Will can be admitted in evidence for collateral purposes in any other proceedings apart from probate proceedings.”
4. Kulwanta Bewa v. Karam Chand Soni, AIR 1938 Calcutta 714
   The Calcutta High Court in this case emphasized that the executor’s title derives from the Will, not from the probate. The Court held that the property vests in the executor upon the death of the testator, and the grant of probate is only a procedural formality.
5. Jogendra Prasad alias Bhola & Ors. v. Kamlesh Kumar & Ors., AIR 2001 Patna 181
   This case dealt with the substitution of heirs in probate proceedings after the death of the original executor. The Court upheld the principle that an executor’s title to the estate is derived from the Will and not the probate, allowing substitution in the absence of probate.
6. Daya Ram & Ors. v. Shyam Sundari, [1965] 1 SCR 231
   The Supreme Court held that when a defendant dies during a suit, some, but not all, heirs can be brought on record to represent the estate. The heirs so substituted will represent the entire estate of the deceased, and the decision of the Court will bind all the heirs, even those not brought on record.

Un-probated will can be admitted in evidence for collateral purposes in any other proceedings apart from a probate proceedings. (Cherichi v. Ittianam reported in [AIR 2001 Kerala 184]). Therefore, on the demise of the testatrix, the said property vested in the executors.

Below are additional case laws relevant to the issue of unprobated Wills and legal representation in property disputes, with a focus on the role of legal representatives under Section 2(11) of the Code of Civil Procedure (CPC) and the Indian Succession Act:

1. Surajmani v. Kishori Lal, (Himachal Pradesh High Court, AIR. 1976 HP 74)

In this case, the Himachal Pradesh High Court dealt with the substitution of a legal representative based on an unprobated Will. The Court held that the estate of the deceased could be sufficiently represented by a person claiming to be the executor or legatee based on an unprobated Will. The Court emphasized that Section 2(11) of the CPC allows for such substitution, and the property would be represented by the person who is legally designated to act on behalf of the deceased, even if the Will has not yet been probated.

2. Mahavir Singh v. Union of India, (AIR 1985 Delhi 43)

The Delhi High Court in this case dealt with the question of whether a person named in an unprobated Will could act as a legal representative in a suit for the recovery of property. The Court recognized that a Will grants property to the executor, even if the Will is unprobated. The Court further held that such an executor or legatee could represent the deceased’s estate in a property dispute until the probate process is concluded. The decision reinforced the understanding that probate is a procedural formality, not a substantive requirement for representation of the estate in ongoing litigation.

3. Inder Pal Singh v. Amarjeet Kaur, (1998) 5 SCC 415

The Supreme Court in this case explained the scope of Section 213 of the Indian Succession Act, which requires the grant of probate before a person can claim rights under a Will. The Court held that although Section 213 prohibits the establishment of rights under a Will unless probate has been granted, it does not preclude the acceptance of an unprobated Will for other collateral purposes, such as determining a legal representative in a property dispute. The judgment clarifies that an unprobated Will can still be admitted for limited purposes, including determining the appropriate person to be substituted as the legal representative of the deceased.

4. Smt. Harku v. Om Prakash, (AIR 2002 Raj 228)

In this case, the Rajasthan High Court discussed the substitution of legal representatives in the context of a property dispute. The Court held that the substitution of a legal representative is not contingent upon the completion of the probate process. The Court pointed out that Section 2(11) of the CPC has a wide interpretation, allowing a person who claims to represent the estate, based on an unprobated Will, to be substituted in place of the deceased plaintiff.

5. Kulwanta Bewa v. Karam Chand Soni, AIR 1938 Calcutta 714

This case, decided by the Calcutta High Court, held that an executor’s right to represent the deceased’s estate is derived from the Will itself, not from the grant of probate. The Court made it clear that while probate serves as a tool for establishing the validity of a Will, the estate vests in the executor immediately upon the death of the testator. The judgment highlights that the grant of probate is procedural and not a prerequisite for the executor’s title to represent the deceased’s estate in proceedings, such as the substitution in a property dispute.

6. K.K. Verma v. K.K. Katoch, AIR 2003 SC 142

In this Supreme Court case, the question was whether the legal heirs could be substituted in place of the deceased plaintiff, in the absence of probate of the Will. The Court acknowledged the principle that a Will itself vests the property in the named executor upon the death of the testator, even if probate has not been granted. The Court further reinforced that a person named as an executor in the Will can represent the deceased’s estate for the purpose of continuing a suit, even in the absence of a probated Will.

7. Smt. Daya Devi v. Smt. Surajwati, (1998) 2 SCC 310

In this case, the Supreme Court dealt with the issue of legal representation in the context of a suit where the plaintiff died, and the dispute revolved around the representation of the deceased’s estate. The Court held that a person who is not an heir but is named as the executor in the unprobated Will could represent the estate of the deceased under Section 2(11) of the CPC. The Court reiterated that the definition of legal representative is wide and includes individuals who intermeddle with the estate, even without probate.

8. N. Narayana Pillai v. K. Subramanian, (2006) 7 SCC 737

In this case, the Supreme Court discussed the scope of Section 211 and Section 213 of the Indian Succession Act, confirming that probate is not a condition precedent for a person to act as a legal representative of the deceased’s estate in proceedings not directly related to the Will itself. The Court ruled that an unprobated Will can be used to establish that a person named as the executor may represent the estate in a property dispute, pending the formal probate process.

9. P. S. Sivasankaran v. C. T. S. Lakshmi, (2011) 7 SCC 248

This case dealt with the substitution of a legal representative in a suit where the plaintiff had died intestate. The Court held that the right to sue could survive if there were heirs or representatives acting on behalf of the deceased’s estate. The Court recognized that even if probate was not granted, a person named in the Will could represent the estate if they were in possession of the estate or had intermeddled with it, consistent with Section 2(11) of the CPC.

10. M. D. Ramaswamy v. K. S. M. Ramaswamy, (AIR 1967 Madras 417)

The Madras High Court in this case held that in the case of a deceased party, the legal representative may not necessarily be the legal heir but can be any person who has been granted authority by the deceased through a Will. The Court ruled that an executor named in the unprobated Will could be allowed to represent the estate of the deceased in ongoing suits until the probate process was completed, provided no objections were raised regarding the authenticity of the Will.

A bare reading of section 211 shows that the property vests in the executors by virtue of the will and not by virtue of the probate. Will gives property to the executor; the grant of probate is only a method by which the law provides for establishing the will. In the case of Kulwanta Bewa v. Karamchand reported in [AIR 1938 Calcutta 714] it has been held that section 211 provides that the estate of the deceased vests in the executor; that the vesting is not of the beneficial interest in the property; but only for the purposes of representation. In the case of Meyappa Chetty v. Supramanian Chetty reported in [43 Indian Appeals 113], the Privy Council has held that an executor derives his title from the will and not from probate. The personal property of the testator (including right of action) vests in the executor(s) on the death of the testator. For purposes of deciding this matter, section 336 of the Act is also relevant as it provides for assent of the executor to the legacy after the death of the testator. It provides that an executor gets divested of his interest as an executor from the death of the testator when he assents to a specific legacy. Section 213 acts as a bar to the establishment of rights under the will by an executor or a legatee unless probate or letters of administration have been obtained. This bar comes into play only when a right as an executor or a legatee under will is sought to be established. However an un-probated will can be admitted in evidence for collateral purposes in any other proceedings apart from a probate proceedings. (See: Cherichi v. Ittianam reported in [AIR 2001 Kerala 184]). Therefore, on the demise of the testatrix, the said property vested in the executors. (Commissioner, Jalandhar Division AIR 2004 SUPREME COURT 2060)