- (1.) INSTEAD of hearing the application for stay, we propose to hear out the appeal itself by treating it as on the day's list as this appeal can be disposed of on a pure question of law and the plaintiff-respondent No. 1 has already entered appearance.
(2.) THIS appeal is at the instance of defendant No.3 in a suit for declaration and injunction and is directed against Order dated June 30, 2011 passed by a learned single Judge of this Court by which His Lordship dismissed an application filed by the present appellant for rejection of the plaint (G.A. 1102 of 2011). Being dissatisfied, the defendant No.3 has come up with the present appeal. The plaintiffs, three in number, filed C.S.No.41 of 2011 alleging that the plaintiff No. 1 is the executrix to the estate of one Saila Bala Sen who was the original owner of the property and plaintiff No.2 is one of the legatees under the said Will along with plaintiff No.1. According to the plaintiffs, plaintiffs Nos.1 and 2 after the death of the testatrix have sold the property in favour of plaintiff No.3 who has thus acquired title to the same, but the defendants who have no right, title and interest in the property are trying to disturb the possession of the plaintiff No.3.
(3.) IN such a suit, the defendant No.3 came up with an application for rejection of the plaint on the ground that before grant of probate of the Will allegedly executed by Saila Bala Sen, the plaintiffs could not file the said suit being barred by section 213 of the INdian Succession Act. The learned single Judge by the order impugned has turned down such prayer on the ground that section 213 of the Indian Succession Act does not stand in the way of a plaintiff instituting a suit on the basis of a right acquired by virtue of Will of somebody before grant of the probate, but no right can be conferred in the suit on that basis so long probate is not granted.;