TMI Blog1962 (2) TMI 84X X X X Extracts X X X X X X X X Extracts X X X X ..... ll in favour of Mrs. Momin in April 1921 by which she gave. the whole house to her. Mrs. Momia in turn made a gift of the house to the plaintiff who thus became the Owner of the house. The defence of the appellant on the other hand'was that Dr. Miss Mitter had executed a will in June 1925 bequeathing the house to her mother Mrs. Mitter. Subsequently the mother made a will in favour of the appellant in April 1930. It appears that no probates of the two alleged wills by Dr. Miss Mitter of April 1921, and June 1925 were taken out. It appear,,; further that Mrs. Mitter was living in this house when she died in 1934. On her death three wills alleged to have been made by her -were propounded one in favour of each of her three daughters, namely, Mrs. Bose, Mrs. Judah and Mrs. Momin Applications for letters of administration were made by the three sisters each claiming that the will in her favour was the last will of Mrs. Mitter, and among the property left by Mrs. Mitter by the three wills was included the house in dispute. Farther the house in question was also shown in the' applications Made by the three sisters for letters of administration of the alleged wills in their favour. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was a will by Dr. Miss Mitter in favour of her mother, though no probate or letters of administration were taken out in that behalf The trial court also found that Mrs. Mitter made a will in favour of the appellant and that letters of administration, as already indicated, were granted to the appellant with respect to Mrs. Mitter's will by the judgment of the Privy Council in 1945. The trial judge therefore held that the appellant was entitled to the house by virtue of the letters of administration granted to her of Mrs. Mitter's will. It repelled the contention of the plaintiff-respondent that as no letters of administration were taken out of the will of Dr. Miss Mitter in favour of Mrs. Mitter, no right to the house could be established by the appellant 'on the basis of the, letters of administration granted to her. The trial court also held that the suit was barred by the principles of res judicata and estoppel. It therefore dismissed the suit. The plaintiff-respondent then went in appeal to the High Court, and the main contention raised on behalf of the respondent before the High Court was that in view of s. 213 of the Indian Succession Act, No. 39 of 1925, (hereinaf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The question therefore that arises is whether it was necessary before the appellant could take advantage of the bequest in favour of Mrs. Mitter that letters of administration of the will of Dr. Miss Mitter should have been obtained by Mrs. Mitter Section 213 (1) which governs this matter is in these terms :- (1) No right as executor or legatee can be established in any Court, of Justice, unless a Court of competent jurisdiction in India has granted probate of the will under which the right is claimed, or has granted letter') of administration with the will or with a copy of an authenticated copy of the will annexed. This section clearly creates a bar to the establishment of any right under a will by an executor or a legatee unless probate or letters of administration of the will have been obtained. It is now well-settted that it is immaterial whether the right under the will is claimed as a plaintiff or a defendant ; In either case s. 213 will be a bar to any right being claimed by a person under a will whether as a plaintiff or as a defendant unless probate or letters of administration of the will have been obtained: (see Gansham- doss v. Gulab Bi Bai) (1). But it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of s. 213 clearly forbids, for it says that no right as - a legatee can be established in, a Court of Justice, unless the probate or letters of administration have been obtained of the will under which the right as a legatee is claimed. It is true that so far -is the will of Mrs. Mitter in favour of the appellant is concerned, she has obtained letters of administration of that and she can maintain her right as -a legatee under that will ; but that will in her favour only gives her those properties which really and truly belonged to Mrs. Mitter, that will however does not create title in the appellant in properties which did not really and truly belong to Mrs. Mitter but which Mrs. Mitter might have thought it fit to include in the will. Therefore, as soon as the appellant, in order succeed on the basis of the will in her favour of which she obtained letters of administration, alleges that Mrs' Mitter was full owner -of the property able to will it away to her, she had to prove the title of Mrs. Mitter to the property. Now it that title rests on Mrs. Mitter's being legatee of Dr. Miss Mitter the appellant will have to prove that Mrs. Mitter bad the right as a legatee under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed as an heir, to Dr. Miss Mitter and granted the plaintiff-respondent a declaration with respect to only half the house. Therefore, the High Court was right in holding that s. 213 would bar the appellant from establishing the right of her mother as a legatee from Dr. Miss Mitter as no probate or letters of administration had been obtained of the alleged will of Dr. Miss Mitter in favour of Mrs. Mitter. The contention of the appellant on this head must therefore fail. Re. (ii). Turning now to the question of res judicata, learned counsel for the appellant has been unable to point out any judgment inter parties in which the question of title to this house has been decided and which would bar the plaintiff- respondent from raising the question of title which she has raised in the present suit. As we have already said ques- tions of title are not decided in proceedings for the grant of probate or letters of administration. Whatever therefore might have happened in those proceedings would not establish the title to the house either of the appellant or of Mrs. Mitter. In particular, learned counsel for the appellant relied on the order of the High Court dated December 17, 1948, by wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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