1927 (9) TMI 2 - HC - Indian Laws

Summary

Issues:
1. Can a defendant rely on an unprobated will as a defense against a claim made by the plaintiff as heir-at-law?
2. Does Section 187 of the Indian Succession Act, X of 1865 apply only to plaintiffs and not defendants?

Analysis:
1. The judgment addresses the question of whether a defendant resisting a claim by the plaintiff as heir-at-law can use an unprobated will as a defense. Section 187 of the Indian Succession Act, X of 1865 states that no right as a legatee can be proved by a will without probate. The court referred to previous cases like Caralapathi Chunna Cunniah v. Cota Nannnalwariah and Janaki v. Dhanu Lall to determine if a defendant can rely on an unprobated will. The court concluded that a defendant can use an unprobated will as a defense, provided it is not to establish a right under the will.

2. The judgment discusses whether Section 187 applies only to plaintiffs and not defendants. It references cases like Lakshmamma v. Ratnamma, Parthasarathy Aiyar v. Subbaroya Gramany, and Basunta Kumar v. Gopal where no distinction was made between plaintiffs and defendants. The court emphasized that Section 187 does not explicitly limit its application to plaintiffs only. The judgment also delves into the principle of Jus tertii, stating that when a plaintiff establishes a prima facie title, the defendant must show a better title either in themselves or in a third party. The court held that the defendant cannot use an unprobated will as a defense to the suit unless a court of competent jurisdiction has granted probate of the will under which the right is claimed.

In conclusion, the court ruled that a defendant can rely on an unprobated will as a defense, as long as it is not to establish a right under the will. The judgment clarified the application of Section 187 to both plaintiffs and defendants and highlighted the importance of establishing a better title when challenging a plaintiff's prima facie title.