IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC NO.3207 OF 2004 KAUSHAL KISHORE SINGH, SON OF NAND KISHORE SINGH, RESIDENT OF SAHER TELPA, POLICE STATION KARPI AND DISTRICT ARWAL ..PETITIONER VERSUS 1. THE STATE OF BIHAR 2. THE COLLECTOR –CUM- DISTRICT MAGISTRATE, ARWAL 3. THE CIRCLE OFFICER, KARPI, DISTRICT ARWAL 4. THE SUB DIVISIONAL OFFICER, ARWAL 5. THE SUPERINTENDENT OF POLICE, ARWAL 6. THE INCHARGE OF SAHER TELPA OUTPOST, DISTRICT ARWAL 7. RAM DULARI DEVI, WIFE OF LATE VISHWANATH SINGH, RESIDENT OF VILLAGE SEOTAR, POLICE STATION AATRI, DISTRICT GAYA 8. RAMNATH SINGH, SON OF LATE VISHWANATH SINGH 9. SUDHA SINGH, WIFE OF RAMNATH SINGH 10. PUSHPA SINGH, WIFE OF LATE RAGHUNATH PRASAD SINGH 11. BIBHA DEVI, WIFE OF DEVENDRA PRASAD SINGH 8 TO 11 ARE RESIDENT OF VILLAGE SAHER TELPA, POLICE STATION KARPI, and DISTRICT ARWAL 12. C. ASHOKVARDHAN, ADDITIONAL MEMBER, BOARD OF REVENUE, BIHAR, PATNA ……………………………………………………………………RESPONDENTS *********** FOR THE PETITIONER :- MR. RAMSURESH RAI, SR. ADVOCATE MR. PARTHA SARTHI, ADVOCATE FOR PVT. RESPONDENT:- MR. ARUN KUMAR AMBASTHA, ADVOCATE MR. MRIGENDRA KUMAR, ADVOCATE FOR THE S T A T E :- MR. OM PRAKASH UPADHYAY, SC (2) CEILING **** 6 06/09/2010 Heard the parties. Ceiling Case Nos. 24, 25 and 26 of 1973-74 have a chequered history and have been bouncing up and down from the Court of the Sub Divisional Officer, the Collector and the Additional Member, Board of Revenue, not to forget the High Court, which has set aside various orders of the Sub Divisional Officer or the Collector. The present order, which is under challenge, is of the Additional Member, Board of revenue passed on - 2 - 08.01.2004 in Case No. 182 of 2002. The undisputed genealogical table is at page 64 of the writ application, which would indicate that the dispute has arisen by virtue of the fact that Baneshwar Kuer has executed a Will on 28.02.2000 in favour of her step daughter-in-law. Her daughter-in-law Nagina Kuer is entitled to one unit in the ceiling proceeding. After her death in the year 1981, the heirs i.e. the sons and daughters of the first wife of Sudharshan Singh are claiming as heirs of Nagina Kuer. It appears that during the ceiling proceedings or may be before that, Baneshwar Kuer transferred some lands by executing sale deeds, and some lands by executing a deed of gift in favour of various persons. Ultimately, the ceiling authorities held that in fact Baneshwar Kuer has transferred his lands beyond the ceiling limit permitted for her. The dispute has arisen due to the fact that the petitioner claims that he would be entitled to protect the interest of Baneshwar Kuer as he is the beneficiary of the Will. The Additional Member, Board of Revenue has rejected the plea on the ground that Section 213 of the Indian Succession Act (hereinafter referred to as the Act) does not recognize any right of the executor or legatee until a degree of probate has been passed by a competent Court. Section 213 of the Act envisages that the Court - 3 - will not recognize the right of an executor unless he has obtained the probate of the Will under which he claims, whereas the petitioner relies on Section 211 of the Act to support the fact that although he may not have right over the property concerned until the Will is probated in his favour, but he has a right to act as a legal representative of the Will and look after the interests of the testator in any proceeding. His rights would be restricted in the representative capacity to protect the interest only. The difference between Sections 211 and 213 of the Act is that Section 213 does not recognize the right of the legatee until the Will is probated in his favour whereas, Section 211 gives the right to protect the interest which is subject to the confirmation in a probate case. I accordingly quash the order of the Additional Member, Board of Revenue dated 08.01.2004 rejecting the claim of the petitioner to protest the interests of the executor of the Will. I may make it clear that this order does not mean that the petitioner has the right over the property concerned until the probate is granted in his favour, subject to any other civil proceedings with respect to right and title. I also take the liberty to direct the Additional District Judge, Jehanabad to decide the Probate Case No. - 4 - 04 of 2003 and Title Suit No. 02 of 2009 at the earliest in order to bring to rest the actual dispute in this case. This application is allowed in the aforesaid terms. Anand ( Sheema Ali Khan, J )