Executor under a will may continue pending litigation without probate; refusal to transpose solely for that reason was untenable.

An executor claiming under a will need not await probate before continuing a pending suit, because under Section 211 of the Succession Act the executor is the deceased's legal representative and the property vests in that representative on death. In that scheme, the executor may continue the lis under Order 22, Rule 10 CPC. The distinction between an executor and an administrator was noted, but it did not justify refusal of transposition on the sole ground of absence of probate. The rejection of the application to transpose the petitioners as plaintiffs was therefore legally untenable, and transposition was warranted.

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Issues: Whether the petitioners, claiming under a will executed by the deceased plaintiff, could be transposed as plaintiffs without first obtaining probate of the will, and whether rejection of their application on that ground was justified.

Analysis: Section 211 of the Succession Act treats the executor or administrator of a deceased person as his legal representative for all purposes and vests the property of the deceased in such representative. On that scheme, an executor does not have to await probate before prosecuting the proceeding, because the testator's interest devolves on death and the executor can continue the lis under Order 22, Rule 10 of the Code of Civil Procedure. The position of an administrator is different, but that distinction did not assist the rejection made by the trial court. The refusal to transpose the petitioners solely for want of probate was, therefore, legally untenable.

Conclusion: The rejection of the transposition application was erroneous, and the petitioners were entitled to be transposed as plaintiffs.

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