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TMI Blog1927 (9) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... ch is to the effect that no right as legatee can be proved by a will of which probate has not been taken. It has been held by this Court in Caralapathi Chunna Cunniah v. Cota Nannnalwariah ILR (1909) M 91 that this objection to proving by an unprobated will applies only to a plaintiff and it was held "that a defendant is not precluded by that section from relying upon a will as he is not seeking to establish a right as executor or legatee." Janaki v. Dhanu Lall ILR (1891) M 454 was cited as authority for that proposition. On a reference to Janaki v. Dhanu Lall ILR (1891) M 454, with all respect, it seems very doubtful whether any such proposition is there put forward. In that case the 1st defendant had obtained a decree against th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kristo Chytunno Pal ILR (1878) C 342 was relied upon by the learned Judges in Janaki v. Dhanu Lall ILR (1891) M 454. In that case no question was decided under Section 187 of the Succession Act. It was merely held that a decree having been obtained against the de facto manager of the deceased's estate, the decree was not a nullity and, even if it cannot be executed against the estate in the hands of the executors when he has taken out probate, it is at any rate sufficient to enable the plaintiff to bring a suit against the executor in order to have the decree satisfied. In fact, the executor had actually obtained probate. 3. There is nothing in Section 187 which would in terms make it applicable only to the case of plaintiffs and not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the question referred to us must be that a defendant can rely on an uprobated will, provided that he does not do so in order to establish a right under the will. 5. As this answer will in no wise dispose definitely of the case before the referring Judges, I think I may add a few words on the facts of the case. The plaintiff is suing as heir-at-law, but he was resisted by the defendants who claim under a will of which no probate has been taken. It is argued that it is a sufficient answer to the plaintiff's case to allege and prove the existence of a will; for in that case the plaintiff, who would be the heir in case of intestacy, would no longer have any right. This rather ignores one point which, I think, is important, namely, that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t he acted as agent for such third person at the time he did the act complained of." Thus where a plaintiff makes out a prima facie title in him to the property in dispute, the defendant has to show a better title either in himself or in some third person. If what is stated above be the correct principle of pleading applicable to such cases, it follows that when the plaintiff in the present case shows a prima facie title in himself to the property in dispute--a.- the admitted heir-at-law of the last owner--the defendant has 'to show a better title' either in himself or in some third person (in the words of the learned author quoted above) or "establish a right as legattee" (in the language of Section 213 of the Indian ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder a will, since the defendant has to prove such person's rights as legatee, he comes within the scope of Section 213 of the Succession Act, XXXIX of 1925 (Section 187 of the old Act X of 1865) under which "No right as legatee can he established in any Court of Justice, unless a Court of competent jurisdiction has granted probate of the will under which the right is claimed". We are not here concerned with that class of cases where no directe title to property is claimed under a will, the will being relied on only to prove an authority to adopt or as containing an admission of the status of some other person--Achyutananda Das v. Jagannath Das (1914) 20 CWN 122; Manuel Louis Kunha v. Jnana Coelho (1908)18MLJ158 ; Basunta Kuma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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