Form No. J(2) In the High Court at Calcutta Civil Appellate Jurisdiction Appellate Side Present: The Hon’ble Justice Sabyasachi Bhattacharyya And The Hon’ble Justice Supratim Bhattacharya FAT No. 52 of 2026 + CAN 1 of 2026 Tapas Mallik @ Kesto Mallik Vs. Smt. Sefali Bala Santra and others For the appellant : Mr. Dyutiman Banerjee, Mr. Debjit Dutta, Advs. For the respondents : Mr. Debasis Kar, Mr. Arka Tilak Bhadra, Advs. Heard on : 27.07.2026. Judgment on : 27.07.2026. Sabyasachi Bhattacharyya, J.:- 1. The deficit court-fees, filed late, are accepted on condonation of the delay in depositing the same. 2. Let the defect in that regard be deemed to stand cured. 3. In view of the short questions involved, we take up the appeal itself for disposal along with the application. 4. By the order impugned, the testamentary court dismissed a probate application filed by the appellant, one of the executors in a Will, on the ground that the probate application is barred by the operation of Order 2 IX Rule 9 of the Code of Civil Procedure (for short, “the Code”), in view of a previous application for probate filed by another executor having been dismissed for default. 5. We had requested learned counsel for the respondents to file a copy of the earlier probate application, which is placed before us and kept on record. 6. It transpires therefrom that the facts as indicated above are corroborated. 7. Learned counsel for the appellant cites a co-ordinate Bench decision in Ramani Debi Vs. Kumud Bandhu Mookherjee, reported at 1910 SCC OnLine Cal 129, where it was held that an application for probate by the executor of a Will, when dismissed for default, cannot itself debar an application by any other person claiming an interest under the Will, and, therefore, necessarily also, by the executor himself. 8. The executor presenting an application for probate of a Will, it was observed, cannot be regarded as a plaintiff, who brings a suit in respect of a cause of action within the terms of Section 103 of the Civil Procedure Code, 1882 (corresponding with Order IX Rule 9 of the current Code). 9. Learned counsel submits that in such view of the matter, the impugned deemed decree dismissing the probate application ought to be set aside. 10. Learned counsel for the respondents argues that on the inaction/unwillingness of one of the executors to proceeding with a previous probate application, the remedy was very well available to the 3 present appellant, the other executor, to substitute himself as the applicant in the said probate application under the contemplation of Order XXII Rule 10 of the Code of Civil Procedure, 1908. 11. Thus, in view of the appellant not having done so, the learned Trial Judge was justified in dismissing the probate application. 12. It is further submitted that on the previous occasion, a written objection to the probate application was filed by the respondents/objectors and the case had proceeded to a substantial extent. 13. However, we are unable to accept the contentions of the respondents. 14. Insofar as a probate proceeding is concerned, the same is an action in rem and the ramifications of a probate, either if granted or refused, operate on a much wider canvas against the whole world, as opposed to the limited in personam cause of action between individual parties. 15. The outcome of a probate application cannot restricted to the personal causes of action of the parties themselves. 16. Thus, the bar under Order IX Rule 9 of the Code does not strictly apply in terms to a testamentary proceeding, since the said bar operates to preclude institution of a second suit on the self-same cause of action at the personal level between the parties and does not take into account the larger effect of a probate application. 17. The above view is also bolstered by the ratio laid down in Ramani Debi (supra), where the co-ordinate Bench was pleased to come to a similar conclusion. 18. From a different perspective, a probate proceeding is filed merely to obtain ratification from the court of the last wishes of a deceased 4 person, and not to have a determination of the right, title and interest of an individual in respect of a property or an office from a regular civil court. In fact, upon grant of probate, the Will operates from the date of demise of the testator. In most jurisdictions is India, no probate is even required to be obtained in order to render a Will operative, and the same takes effect immediately on the demise of the testator. 19. Hence, a probate application, stricto sensu, cannot be deemed to be an individual cause of action or a suit between the parties themselves to have their rights determined. 20. Insofar as the applicability of Order XXII Rule 10 of the Code is concerned, the said provision does not come into play in the instant case and operates in a different context where, during pendency of a proceeding, the interest in the subject property has devolved on a different person. 21. The paradigm of Sections 211 and 213 of the Indian Succession Act, 1925, however, does not speak about devolution of an interest in the property but merely cast an obligation on the concerned executor to have the Will probated. 22. Hence, the said provision cannot operate as a bar to a subsequent probate application by a different executor. 23. Again, since Order IX Rule 9 of the Code, in any event, operates as a bar to the particular plaintiff whose suit was dismissed for default, same does not preclude a different person from coming up with a similar suit, even in case of a regular civil suit. 5 24. In the instant case, the present appellant was not the executor whose probate application was dismissed for default and, as such, Order IX Rule 9 of the Code could not have debarred him from preferring the present application. 25. The mere fact that the earlier probate proceeding had proceeded to a considerable extent, as argued by the respondents, cannot also be a relevant consideration in the absence of the same having reached culmination in any manner. 26. Before parting with the matter, we also take into consideration the settled proposition of law that even if the sole executor or all the executors of a Will do not intend to proceed or are inactive regarding obtaining the probate of the Will, it is open even to the beneficiaries/legatees of the Will to directly take out an application for grant of Letters of Administration in terms of the Will. 27. Hence, instead of unnecessarily relegating the beneficiaries to such remedy, we are of the opinion that the present probate application by the second executor ought to have been decided on merits, upon affording opportunity to all the respondents to take the objections which they intend to take to the grant of probate, including those taken in the earlier probate proceeding. 28. Thus, FAT No. 52 of 2026 is allowed on contest, thereby setting aside the impugned decree (deemed) dated November 18, 2025 passed by the District Delegate at Barrackpore, District- North 24-Parganas in Miscellaneous Case No. 268 of 2023 and remanding the matter to the District Delegate for a fresh consideration on merits. 6 29. We make it clear that the present respondents will be at liberty to file an objection to the probate application before the District Delegate. If so, the District Delegate shall refer the matter to the concerned District Judge having jurisdiction within the contemplation of the Indian Succession Act, 1925 for a contested hearing, upon converting the contentious probate proceeding to a suit. 30. We further make it clear that the merits of the respective contentions of the parties in the probate application have not been entered into by this Court at all and it will be open to the learned District Delegate or learned District Judge, as the case may be, to decide the probate proceeding on its own merits. 31. CAN 1 of 2026 is also disposed of consequentially. 32. Interim order, if any, stands vacated. 33. There will be no order as to costs. 34. Urgent certified copies of this judgment, if applied for, be made available to the parties upon compliance with the requisite formalities. (Sabyasachi Bhattacharyya, J.) I agree. (Supratim Bhattacharya, J.)