Summary
In the case of Dev Sahitya Kutir Pvt Ltd v. Smt. Archana Debnath & Anr., the Calcutta High Court held that an executor or legatee may maintain a suit before grant of probate for the limited purpose of protecting the estate and the copyright covered by the Will. The court also held that copyright infringement gives rise to a continuing cause of action that arises day to day, and therefore a later suit on subsequent acts of copyright infringement is not barred as the same cause of action.
Copyright Infringement and Testamentary Standing Dispute
In a copyright infringement case, the plaintiffs claimed that the deceased author had left a Will under which plaintiff no. 2 was the legatee of the copyright and plaintiff no. 1 was the executrix. They alleged that the defendant continued to publish and distribute the works even though the earlier arrangement was only for a limited period, which amounts to copyright infringement. The trial court granted an ad interim injunction, and the defendant challenged that order in appeal by raising, among other things, objections on locus standi before probate and on the plea that the later suit was barred because of an earlier dismissal for default.
Questions Before the Court
- Whether an executor or legatee can maintain a suit to protect the estate and the subject property under a Will before grant of probate.
- Whether copyright infringement gives rise to a continuing cause of action so that a subsequent suit based on later acts of infringement is not barred by Order IX Rule 9 of the Code of Civil Procedure.
- Whether delay in approaching the court defeats interim relief in a copyright infringement action when the alleged infringement continues from day to day.
Arguments Presented By the Parties
On the first issue, the appellant argued that Section 213, read with Section 57 of the Indian Succession Act, barred both the executrix and the legatee from asserting any right under the Will before probate. The appellant submitted that in West Bengal no right as executor or legatee could be established in a court until probate or letters of administration had been granted. The appellant relied on Kanta Yadav, Ravinder Nath Agarwal, and the Full Bench decision in Ganshamdoss Narayandoss v. Gulab Bi Bai.
The plaintiffs responded that the cited authorities did not decide the specific issue before the court, namely the interaction of Sections 211 and 213 in a case where the executor or legatee sues only to protect the estate pending probate. They also maintained that the suit was maintainable because they were heirs of the deceased as well.
On the continuing cause of action issue, the appellant argued that the plaintiffs knew about the alleged infringement at least from earlier proceedings and still waited for a long time to file the present suit. It was also argued that an earlier suit filed by the deceased had been dismissed for default, and therefore the present suit was barred by Order IX Rule 9 and by limitation.
The plaintiffs answered that in copyright infringement matters the cause of action arises day to day. They relied on Midas Hygiene Industries (P) Ltd. v. Sudhir Bhatia and Renaissance Hotel Holdings Inc. v. B. Vijaya Sai to submit that delay is not a bar where infringement continues and that injunction normally follows in such cases.
Court’s Analysis
The court first examined the authorities cited by the appellant and stated that they did not decide the precise question before it. The court said that Kanta Yadav dealt with whether probate was necessary in the National Capital Region of Delhi, and not with whether an executor or legatee may sue to defend property before probate. The court also said that Ravinder Nath Agarwal turned on territories outside the scope of Sections 57 and 213, and therefore did not resolve the present issue. As for Gulab Bi Bai, the court observed that the overlap between Sections 211, 213, and 227 had not been considered there either.
The court then stated that an apparent conflict arises because Section 213 prevents an executor or legatee from establishing rights in court before probate, while Section 211 treats the executor as the legal representative in whom the property vests. According to the court, that conflict must be read along with Section 227, which gives probate retrospective effect from the date of death and validates all intermediate acts of the executor.
According to the court, if Section 213 were read in the absolute manner suggested by the appellant, a legal vacuum would arise between the death of the testator and the grant of probate in territories where probate is required. The court said that such a vacuum could not have been intended by law. The court therefore read Sections 211 and 227 harmoniously and held that even where Section 213 applies, an executor may maintain suits, defend proceedings, and take steps for the limited purpose of protecting the estate, and such steps would count as intermediate acts later validated on grant of probate.
The court further stated that the same limited protection extends to a legatee when the object is not to finally establish title under the Will but to defend or protect the subject property until probate is granted. On that reasoning, the court held that the plaintiffs were entitled to maintain the suit even before probate. The court further added that the plaintiffs were also heirs of the deceased, which independently supported maintainability.
On the second issue, the court said that a suit dismissed for default bars only a later suit on the self same cause of action. The court observed that copyright infringement is continuing in nature and arises de die in diem. As per the court, limitation arises day to day because each fresh act of infringement gives rise to a fresh cause of action. On that basis, the court held that the later suit was based on a fresh and subsequent cause of action and was therefore not barred by Order IX Rule 9.
The court then linked that reasoning to the delay objection. The court stated, following Midas Hygiene and Renaissance Hotel Holdings, that in copyright infringement actions injunction is granted almost as a matter of course unless a defect goes to the root of jurisdiction or maintainability. The court also said that, because the cause of action arises day to day, prior knowledge of infringement did not by itself create a bar to the present suit and was not a material suppression in the circumstances.
Findings
The court held that an executor or legatee can sue before probate for the limited purpose of defending and protecting the estate and the subject property covered by the Will. The court further stated that the present suit was maintainable both in that capacity and also because the plaintiffs were heirs of the deceased.
The court also held that copyright infringement creates a continuing cause of action that arises day to day. For that reason, the present suit was not barred by Order IX Rule 9, and the objection based on delay did not defeat the grant of interim injunction.
The Court dismissed the appeal, and affirmed the ad interim injunction granted by the trial court.
Case Citation
Dev Sahitya Kutir Pvt. Ltd. v. Smt. Archana Debnath & Anr., FMAT 18 of 2026, 2026 CHC AS 96 DB, decided on January 21, 2026, Calcutta High Court.
Indian Kanoon link: http://indiankanoon.org/doc/99531680/ Visit date: March 23, 2026.
Disclaimer
This case blog is based on the author’s understanding of the judgment. Understandings and opinions of others may differ. An AI application was used to generate parts of this case blog. Views are personal.